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Full text of "North Carolina Register v.9 no. 6 (6/15/1994)"

klMCol 



The 



JUN 20 iv94 



KATHRWE R EVERETT 
LAW LIBRARY 



yNORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDER 



PROPOSED RULES 

Chiropractic Examiners 

Environment, Health, and Natural Resources 

Justice 

Public Education 



LIST OF RULES CODD7TED 



9 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: June 15, 1994 



Volume 9 • Issue 6 • Pages 349 - 411 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447 , 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 150B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Registerbeioxt the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue temp 
rary rules. Within 24 hours of submission to OAH, the Codifier 
Rules must review the agency's written statement of findings of ne 
for the temporary rule pursuant to the provisions in G.S. 150B-21 .1 . 
the Codifier determines that the findings meet the criteria in G 
150B-21.1, the rule is entered into the NCAC. If the Codifi 
determines that the findings do not meet the criteria, the rule is return 
to the agency. The agency may supplement its findings and resubn 
the temporary rule for an additional review or the agency may respo 
that it will remain with its initial position. The Codifier, thereafter, w 
enter the rule into the NCAC. A temporary rule becomes effecti 
either when the Codifier of Rules enters the rule in the Code or on 
sixth business day after the agency resubmits the rule without chanj 
The temporary rule is in effect for the period specified in the rule or 1 
days, whichever is less. An agency adopting a temporary rule mi 
begin rule-making procedures on the permanent rule at the same tii 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilati 
and index of the administrative rules of 25 state agencies and 
occupational licensing boards. The NCAC comprises approximah 
15,000 letter size, single spaced pages of material of which appro 
mately 35% is changed annually. Compilation and publication oft 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agencj 
assigned a separate title which is further broken down by chapte 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of rt 
dollars and 50 cents ($2.50) for 10 pages or less, plus fifte 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented monthly w 
replacement pages. A one year subscription to the 
publication including supplements can be purchased 
seven hundred and fifty dollars ($750.00). Individual v 
umes may also be purchased with supplement service. I 
newal subscriptions for supplements to the initial publicati 
are available. 

Requests for pages of rules or volumes of the NCAC should 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, pi 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volu 
1, Issue 1, pages 101 through 201 of MieNorthCarolinaRegisterissx 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



EXECUTIVE ORDER 

Executive Order No. 49 



349 



II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Environmental Management .... 352 

Health Services 370 

Solid Waste Management 364 

Wildlife Resources Commission . . 358 

Justice 
Alarm Systems Licensing Board . 351 

Licensing Board 
Chiropractic Examiners 376 

Public Education 
Elementary and Secondary 375 

III. LIST OF RULES CODIFIED . . 378 

IV. RRC OBJECTIONS 385 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 390 

Text of Selected Decisions 

92 OSP 1770 395 

92 DST 0015 403 

93 CPS 1608 407 

VI. CUMULATIVE INDEX , 410 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

75 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 
** The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Raised 03/94 



EXECUTIVE ORDER 



EXECUTIVE ORDER NO. 49 
FISCAL NOTES ON ADMINISTRATIVE RULES AFFECTING LOCAL 

GOVERNMENTS 

WHEREAS, GS 150B-21.4(b) requires analysis of proposed administrative rules for their affect on local 
revenues; and 

WHEREAS, the actions of state agencies can have profound but unanticipated effects on local governments' 
budgets; and 

WHEREAS, the Governor of North Carolina has pledged to work closely with local elected officials to forge 
a strong state-local government partnership; and 

WHEREAS, the Governor wishes to establish a procedure to provide local governments with broader 
opportunities for input on proposed administrative rules which may impose additional costs at the local level; 
and 

WHEREAS, all state agencies must take into account, as they develop administrative rules affecting local 
governments, the potential costs of implementing these rules; 

NOW, THEREFORE, by the power vested in me as Governor by the laws and Constitution of the State of 
North Carolina, IT IS ORDERED: 

Section 1. Role of the Governor's Office. 

The Office of the Governor shall: 

1. Implement a process to ensure any rule submitted for the Governor's review includes a fiscal note 
on its effects on local government; and 

2. Request the Office of Administrative Hearings revise its form OAH-2A to provide additional 
information on the fiscal effects of proposed rule actions on local governments. 

Section 2. Responsibility of All State Agencies. 

1. Each department shall designate a staff member reporting directly to the department head who will be 
responsible for the following: 

a. Screening all proposed rule actions prior to publication in the North Carolina Register to assure that 
an accurate fiscal note as required by GS. 150B-2 1.4(b) has been completed; and 

b. Consultation with the North Carolina Association of County Commissioners and the North Carolina 
League of Municipalities to assure that these organizations have received copies of all fiscal notes 
prior to the publication of proposed rules in the North Carolina Register . 

2. Each department is directed to consult with representatives of the North Carolina Association of County 
Commissioners and the North Carolina League of Municipalities and other appropriate organizations to 
determine which local governments and local agencies could be affected by any proposed rule action. 

3. Each department is directed to consult with an appropriate sample of city and/or county managers (with 
assistance available from the North Carolina Association of County Commissioners and the North Carolina 
League of Municipalities) at the earliest possible point in analyzing the fiscal effect of proposed rule actions 
and in developing and drafting rules and rule changes that: 

a. Could require local governments including counties, cities, school administrative units and other local 
agencies funded by or through any of these to carry out additional or modified responsibilities, or 

b. Could increase the cost of providing or delivering a public service funded in whole or in part by any 
local government, or 

c. Could otherwise affect the expenditures or revenues of a unit of local government. 

4. Each department is directed to send a copy of the final fiscal note to the Office of State Budget and 
Management for compilation as noted in Section 4 of this Order. 

5. Each department is further directed to compile a schedule of the administrative rules and amendments 
expected to be proposed during the next state fiscal year. The schedule shall be provided to the Office of 
State Budget and Management in a manner proposed by OSBM and within a time frame which will permit 



9:6 NORTH CAROLINA REGISTER June 15, 1994 349 



EXECUTIVE ORDER 



the Budget Office to provide this information to the Governor, the North Carolina Association of County 
Commissioners and the North Carolina League of Municipalities, as is specified in Section 4 of this Order. 

Section 3. Minimizing Effects of Rules on Local Budgets. 

Recognizing that rules imposed after the adoption of local budgets can significantly affect local fiscal 
condition, the departments are hereby directed to consider the timing for implementation of proposed rules 
as part of the preparation of the fiscal note. 

In cases where the computation of costs in the fiscal note indicates the proposed rule action will disrupt the 
budget process as set out in Article 3 of Chapter 159 of the General Statutes (the Local Government Budget 
and Fiscal Control Act), the departments are hereby directed to establish the effective date of the rule or action 
as: 

July 1 of the fiscal year following publication in the North Carolina Register , but not less than six months 
following such publication. 

However, should conditions beyond the control of state departments compel a department to adopt rules with 
other than the July 1 effective date, the department shall include a statement with the fiscal note explaining 
the reason(s) for the deviation from this standard, 

Section 4. Duties of the Office of State Budget and Management. 

The Office of State Budget and Management shall be responsible for the following duties: 

1. Compiling an annual summary of the projected fiscal impact on local governments of state 
administrative rules adopted during the preceding fiscal year; 

2. Compiling from the departments the schedules of anticipated rule actions for the upcoming state 
fiscal year; and 

3. Providing the Governor, the North Carolina Association of County Commissioners and the North 
Carolina League of Municipalities with a copy of the above mentioned summary and schedules no 
later than March 1 of each year. 

Section 5. Effect on Other Executive Orders. 



All other Executive Orders or portions of Executive Orders inconsistent herewith are hereby rescinded. 

This Order shall be effective immediately. 

Done in the Capital City of Raleigh, North Carolina, this the 17th day of May, 1994. 



350 9:6 NORTH CAROLINA REGISTER June 15, 1994 



PROPOSED RULES 



TITLE 12 - DEPARTMENT OF 
JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Alarm Systems Licensing 
Board intends to amend rule cited as 12 NCAC 11 
.0202; adopt rules cited as 12 NCAC 11 .0123, 
.0210. 

1 he proposed effective date of this action is 
September 1, 1994. 

lhe public hearing will be conducted at 2:00 
p.m. on June 30, 1994 at the State Bureau of 
Investigation, Conference Room, 3320 Old Garner 
Road, Raleigh, N. C. 27626-0500. 

Jxeason for Proposed Action: 
12 NCAC 11 .0123 - Attempts to protect the public 
by requiring monitoring companies and their 
agents to disclose basic information to consumers 
who have contracted with alarm companies for 
alarm monitoring services. 

12 NCAC 11 .0202 - Changes the experience 
requirements needed to obtain an alarm systems 
business license. Current requirements are techni- 
cally oriented. The Board wishes to delete the 
technical requirements in order to allow owners or 
managers the opportunity to hold a license. 
12 NCAC 11 .0210 - Will require each alarm 
systems business office to employ an individual 
who is licensed with the N. C. Board of Electrical 
Contractors. 

\somment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. The Record of Hearing will be open 
for receipt of written comments through July 15, 
1994. Written comments must be delivered to the 
Private Protective Services Board, 3320 Old 
Garner Road, Raleigh, N.C. 27626-0500. 

CHAPTER 11 - NORTH CAROLINA 
ALARM SYSTEMS LICENSING BOARD 

SECTION .0100 - ORGANIZATION AND 
GENERAL PROVISIONS 

.0123 CONSUMER DISCLOSURE REQ. FOR 
THIRD-PARTY MONITORING 
CONTRACTS 

(a) If a firm, association, or corporation installs 



or services an alarm system and acts as a 
third-party agent for an alarm monitoring company 
by executing a contract between the consumer and 
a monitoring company, the agent alarm company 
shall disclose to the consumer the fee for alarm 
monitoring, the name, address, and telephone 
number of the monitoring company. For the 
purpose of this Rule a "third-party agent" is a 
person, firm, association, corporation or depart- 
ment or division of a firm, association, or corpora- 
tion that holds itself out as the representative of a 
third-party monitoring company with the expressed 
or implied authority by the third-party monitoring 
company to contract monitoring services to a 
consumer on behalf of the third -party monitoring 
company. 

(b) The consumer must be notified jn writing 30 
days prior to the cessation of alarm monitoring 
services. If the alarm monitoring services are 
being transferred to another monitoring company, 
the consumer must be notified in writing of the 
name, address, and telephone number of the new 
monitoring company. The third -party agent and 
the monitoring company are responsible for notify- 
ing the consumer of the termination or change in 
monitoring services. 

Statutory Authority G. S. 74D-5. 

SECTION .0200 - PROVISIONS FOR 
LICENSEES 

.0202 EXPERIENCE REQUIREMENTS 
FOR LICENSE 

(a) Applicants for an alarm system license must 
meet the following minimum requirements which 
are additional to those specified in G.S. 74D: 

(1) Establish to the Board's satisfaction two 
year's experience within the past five 
years in an alarm systems business as 
defined in G.S. 7 4 D 2(a); alarm sys- 
tems installation^ and service.^ or alarm 
systems business management ; or 

(2) Successfully pass an oral or written 
examination deemed by the Board to 
measure an individual's knowledge and 
competence in the alarm systems busi- 
ness ; and ^ 



0h 



Hold a li 



for cither the SP LV, 



a license 

limited, intermediate or unlimited ex 
amination as administered by the North 
Carolina Board of Examiners of Electri 



cal Contractor s and maintain said li 
cense at all times while licensed by the 
Alarm Systems Licensing Board. 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



351 



PROPOSED RULES 



(b) Any applicant who takes the examination 
administered by the Board under 12 NCAC 11 

0202(a)(2) and who does not successfully com- 
plete said examination after two attempts, must 
wait six months before being allowed to take the 
examination again. 

(c) Applicants engaged exclusively in monitoring 
or responding to alarms may be issued a limited 
license which authorizes the performance of 
monitoring and responding functions only. Appli- 
cants for such a limited license shall not be re- 
quired to meet the experience requirements of 12 
NCAC 11 .0202(a). 

Statutory Authority G. S. 74D-5. 

.0210 ELECTRICAL CONTRACTING 
LICENSE REQUIREMENTS 

Each firm, association, corporation, department, 
division, or branch office required to be licensed 
pursuant to G.S. 74D-2(a) must maintain at all 
times a licensee or registered employee who holds 
a license for either a SP-LV. limited, intermediate 
or unlimited examination as administered by the 
North Carolina Board of Examiners of Electrical 
Contractors. Pursuant to 12 NCAC U .0206, 
each firm, association, corporation, department, 
division, or branch office must maintain in its 
records a copy of the licensee's or registered 
employee's Electrical Contractors License. In the 
event the licensee holding the electrical 
contractor's license ceases to perform his duties as 
the electrical contractor licensee, the business 
entity shall notify the Board in writing within 10 
working days. The business entity must obtain a 
substitute electrical contractor licensee within 30 
days after the original electrical contract licensee 
ceases to serve. Each firm, association, corpora- 
tion, department, division, or branch office must 
comply with this Rule within six months after the 
effective date of this Rule. 

Statutory Authority G.S. 74D-2(a); 74D-5. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Commission intends to amend rules cited 
as 15A NCAC 2B .0302, .0304 and .0308. 



1 he proposed effective date of this action is 
November 1 , 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person requesting that the Environ- 
mental Management Commission conduct a public 
hearing on any of these proposed amendments 
must submit a written request to Suzanne Keen, 
Division of Environmental Management, Wbter 
Quality, P.O. Box 29535, Raleigh, N.C 27626- 
0535 by July 1 , 1994. The request must specify 
which rule the hearing is being requested on. 
Mailed written requests must be postmarked no 
later than July 1, 1994. 

MXeason for Proposed Action: To apply appropri- 
ate stream classifications to specific surface waters 
in the state. 

Lsomment Procedures: All persons interested in 
these proposed amendments are encouraged to 
submit written comments. Comments must be 
postmarked by July 15, 1994, and submitted to 
Suzanne Keen, Division of Environmental Manage- 
ment, Vbter Quality, P.O. Box 29535, Raleigh, 
N.C. 27626-0535. 

Fiscal Note: These Rules affect the expendi- 
ture or revenues of local funds. A fiscal note was 
submitted to the Fiscal Research Division on 
November 22, 1993, OSBM on November 22, 
1993, N.C. League of Municipalities on Novem- 
ber 22, 1993, and N.C. Association of County 
Commissioners on November 22, 1993. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSD7ICATIONS 

.0302 HIWASSEE RIVER BASIN 

(a) Places where the schedule may be inspected: 

(1) Clerk of Court: 
Cherokee County 
Clay County; 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources 



352 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



PROPOSED RULES 



Asheville Regional Office 
Interchange Building 
59 Woodfin Place 
Asheville, North Carolina. 

(b) Unnamed Streams. Such streams entering 
Georgia or Tennessee will be classified "C Tr." 

(c) The Hiwassee River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective: 

(1) August 9, 1981; 

(2) February 1, 1986; 

(3) March 1, 1989; 

(4) August 1, 1990; 

(5) August 3, 1992; 

(6) November 1, 1994. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Hiwassee River Basin 
was amended effective March 1, 1989 as follows: 

(1) Fires Creek (Index No. 1-27) and all 
tributary waters were reclassified from 
Class C-trout and Class C to Class 
C-trout ORW and Class C ORW. 

(2) Gipp Creek (Index No. 1-52-23) and all 
tributary waters were reclassified from 
Class C-trout and Class C to Class 
C-trout ORW and Class C ORW 

(e) The Schedule of Classifications and Water 
Quality Standards for the Hiwassee River Basin 
was amended effective August 3, 1992 with the 
reclassification of all water supply waters( with a 
primary classification of WS-I, WS-II or WS-III). 
These waters were reclassified to WS-I, WS-II, 
WS-III, WS-IV or WS-V as defined in the revised 
water supply protection rules, (15A NCAC 2B 
.0100, .0200 and .0300) which became effective 
on August 3, 1992. In some cases, streams with 
primary classifications other than WS were reclas- 
sified to a WS classification due to their proximity 
and linkage to water supply waters. In other 
cases, waters were reclassified from a WS classifi- 
cation to an alternate appropriate primary classifi- 
cation after being identified as downstream of a 
water supply intake or identified as not being used 
for water supply purposes. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Hiwassee River Basin 
was amended effective November 1^ 1994 with the 
reclassification of the Hiwassee River Tlndex Nos. 
H42.7) and 1-(48.5)1 from McComb Branch to 
the Town of Murphy water su pply intake including 
tributaries from Classes WS-IV and WS-IV CA to 
Classes WS-IV. WS-IV CA, WS-V and C. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 



.0304 FRENCH BROAD RIVER BASIN 

(a) Places where the schedules may be inspect- 
ed: 

(1) Clerk of Court: 
Avery County 
Buncombe County 
Haywood County 
Henderson County 
Madison County 
Mitchell County 
Transylvania County 
Yancey County 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources 
Asheville Regional Office 
Interchange Building 

59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering 
Tennessee will be classified "B." 

(c) The French Broad River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective: 

(1) September 22, 1976; 

(2) March 1, 1977; 

(3) August 12, 1979; 

(4) April 1, 1983; 

(5) August 1, 1984; 

(6) August 1, 1985; 

(7) February 1, 1986; 

(8) May 1, 1987; 

(9) March 1, 1989; 

(10) October 1, 1989; 

(11) January 1, 1990; 

(12) August 1, 1990; 

(13) August 3, 1992; 

(14) October 1, 1993; 

(15) November 1, 1994. 

(d) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective March 1, 1989 as 
follows: 

(1) Cataloochee Creek (Index No. 5-41) 
and all tributary waters were reclassi- 
fied from Class C-trout and Class C to 
Class C-trout ORW and Class C ORW. 

(2) South Fork Mills River (Index No. 
6-54-3) down to Queen Creek and all 
tributaries were reclassified from Class 
WS-I and Class WS-III-trout to Class 
WS-I ORW and Class WS-III-trout 
ORW. 

(e) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective October 1, 1989 as 



9:6 



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June 15, 1994 



353 



PROPOSED RULES 



follows: Cane River (Index No. 7-3) from source 
to Bowlens Creek and all tributaries were reclassi- 
fied from Class C trout and Class C to Class 
WS-III trout and Class WS-III. 

(f) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective January 1, 1990 as 
follows: North Toe River (Index No. 7-2) from 
source to Cathis Creek (Christ Branch) and all 
tributaries were reclassified from Class C trout and 
Class C to Class WS-III trout and Class WS-III. 

(g) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective August 3, 1992 with 
the reclassification of all water supply waters 
(waters with a primary classification of WS-I, WS- 
II or WS-III). These waters were reclassified to 
WS-I, WS-II, WS-III, WS-IV or WS-V as defined 
in the revised water supply protection rules, (15A 
NCAC 2B .0100, .0200 and .0300) which became 
effective on August 3, 1992. In some cases, 
streams with primary classifications other than WS 
were reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective October 1, 1993 as 
follows: Reasonover Creek [Index No. 

6-38- 14-( 1)] from source to Reasonover Lake Dam 
and all tributaries were reclassified from Class B 
Trout to Class WS-V and B Trout, and Reasonover 
Creek [Index No. 6-38-14-(4)] from Reasonover 
Lake Dam to Lake Julia Dam and all tributaries 
were reclassified from Class C Trout to Class 
WS-V Trout. 

(i) The Schedule of Classifications and Water 
Quality Standards for the French Broad River 
Basin was amended effective November l^_ 1994 
with the reclassification of Cane Creek [Index 
Nos. 6-57-(l) and 6-57-(9)l from ]ts source to the 
French Broad River from Classes WS-IV and WS- 
IV Tr to Classes WS-V, WS-V Tr and WS-IV. 



Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 

.0308 CATAWBA RIVER BASIN 

(a) Places where the schedules may be inspect- 
ed: 

(1) Clerk of Court: 



Alexander County 
Avery County 
Burke County 
Caldwell County 
Catawba County 
Gaston County 
Iredell County 
Lincoln County 
McDowell County 
Mecklenburg County 
Union County 
Watauga County 
(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources: 

(A) Mooresville Regional Office 
919 North Main Street 
Mooresville, North Carolina 

(B) Asheville Regional Office 
Interchange Building 

59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering 
South Carolina are classified "C". 

(c) The Catawba River Basin Schedule of Classi- 
fications and Water Quality Standards was amend- 
ed effective: 

(1) March 1, 1977; 

(2) August 12, 1979; 

(3) April 1, 1982; 

(4) January 1, 1985; 

(5) August 1, 1985; 

(6) February 1, 1986; 

(7) March 1, 1989; 

(8) May 1, 1989; 

(9) March 1, 1990; 

(10) August 1, 1990; 

(11) August 3, 1992; 

(12) November 1, 1994. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective March 1, 1989 as follows: 

(1) Wilson Creek (Index No. 11-38-34) and 
all tributary waters were reclassified 
from Class B-trout and Class C-trout to 
Class B-trout ORW and Class C-trout 
ORW. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective May 1, 1989 as follows: 

(1) Henry Fork [Index Nos. 11-129-1-(1) 
and 1 1-129- 1-(2)] from source to Laurel 
Creek, including all tributaries, were 
reclassified from Class WS-I, C and C 
trout to Class WS-I ORW, C ORW and 
C trout ORW, except Ivy Creek and 



354 



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June 15, 1994 



PROPOSED RULES 



Rock Creek which will remain Class C 
trout and Class C. 
(2) Jacob Fork [Index Nos. ll-129-2-(l) 
and 1 1-129-2-(4)] from source to Camp 
Creek, including all tributaries, were 
reclassified from Class WS-III trout and 
WS-III to WS-III trout ORW and 
WS-III ORW. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective March 1, 1990 as follows: 

(1) Upper Creek [Index No. ll-35-2-(l)] 
from source to Timbered Branch in- 
cluding all tributaries except Timbered 
Branch (Index No. 11-35-2-9) was 
reclassified from Class C Trout to Class 
C-Trout ORW. 

(2) Steels Creek [Index No. 11-35-2-12(1)] 
from source to Little Fork and all 
tributaries was reclassified from Class 
C Trout to Class C Trout ORW. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective August 3, 1992 with the reclas- 
sification of all water supply waters (waters with 
a primary classification of WS-I, WS-II or 
WS-III) These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective November l± 1994 with the 
reclassification of Clark Creek from a point 0.6 
mile downstream of Catawba County SR 2014 to 
0.4 mile upstream of Larkard Creek flndex No. 
ll-129-5-(4.5)l. and Howards Creek from its 
source to 0.7 mile upstream of Lincoln County 
State Road 1200 rindex No. 11-129-41, including 
associated tributaries from Class WS-IV to Classes 
C and WS-IV. 



Statutory Authority G.S. 
143-21 5. 3(a)(1). 



143-214.1; 143-215.1; 



********** ******** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Commissions intends to amend rule cited 
as 15 A NCAC2B .0303. 

1 he proposed effective date of this action is 
March 1, 1995. 

1 he public hearing will be conducted at 7:00 
p.m. on August 18, 1994 at the Blue Ridge School 
Auditorium, Highway 107, Glenville, N. C. 

Keason for Proposed Action: To reclassify 
Thorpe Reservoir and its tributary, Hurricane 
Branch, in Jackson County (Little Tennessee River 
Basin) as High Quality Vfaters. 

(comment Procedures: All persons interested in 
these matters are invited to attend. Comments, 
statements, data and other information may be 
submitted in writing prior to, during or within 30 
days after the hearing (9-17-94) or may be pre- 
sented verbally at the hearing. Verbal statements 
may be limited at the discretion of the hearing 
officer. Submittal of written copies of verbal 
statements is encouraged. Comments or questions 
may be addressed to Suzanne Keen, Division of 
Environmental Management, P.O. Box 29535, 
Raleigh, N. C. 27626-0535, (919) 733-5083. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0303 LITTLE TENN RIVER BASIN AND 
SAVANNAH RIVER DRAINAGE 
AREA 

(a) Places where the schedule may be inspected: 
(1) Clerk of Court: 
Clay County 
Graham County 
Jackson County 
Macon County 
Swain County 
Transylvania County 



9:6 



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June 15, 1994 



355 



PROPOSED RULES 



(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources 
Asheville Regional Office 
Interchange Building 
59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering 
Georgia or Tennessee will be classified "C Tr." 
Such streams in the Savannah River drainage area 
entering South Carolina will be classified "B Tr. " 

(c) The Little Tennessee River Basin and Savan- 
nah River Drainage Area Schedule of Classifica- 
tions and Water Quality Standards was amended 
effective: 

(1) February 16, 1977; 

(2) March 1, 1977; 

(3) July 13, 1980; 

(4) February 1, 1986; 

(5) October 1, 1987; 

(6) March 1, 1989; 

(7) January 1, 1990; 

(8) July 1, 1990; 

(9) August 1, 1990; 

(10) March 1, 1991; 

(11) August 3, 1992; 

(12) February 1, 1993; 

(13) March 1, 1995. 

(d) The Schedule of Classifications of Water 
Quality Standards for the Little Tennessee Basin 
and Savannah River Drainage Area was amended 
effective March 1, 1989 as follows: 

(1) Nantahala River (Index No. 2-57) from 
source to the backwaters of Nantahala 
Lake and all tributary waters were 
reclassified from Class B-trout, Class 
C-trout and Class C to Class B-trout 
ORW, Class C-trout ORW and Class C 
ORW. 

(2) Chattooga River (Index No. 3) includ- 
ing Scotsman Creek, Overflow Creek, 
Big Creek, Talley Mill Creek and all 
tributary waters were reclassified from 
Class B-trout, Class C-trout and Class 
C to Class B-trout ORW, Class C-trout 
ORW and Class C ORW and Clear 
Creek and all tributary waters were 
reclassified from Class C-trout and 
Class C to Class B-trout and Class B. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effective January 1, 1990 as follows: 

(1) North Fork Coweeta Creek (Index No. 
2-10-4) and Falls Branch (Index No. 



2-10-4-1) were reclassified from Class 
C to Class B. 
(2) Burningtown Creek (Index No. 2-38) 
was reclassified from C-trout to 
B-trout. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effective July 1, 1990 by the reclassifica- 
tion of Alarka Creek (Index No. 2-69) from source 
to Upper Long Creek (Index No. 2-69-2) including 
all tributaries from Classes C and C Tr to Classes 
C HQW and C Tr HQW. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effective March 1, 1991 as follows: 

(1) Cartoogechaye Creek [Index Nos. 
2-19-(l) and 2-19-(16)] from Gibson 
Cove Branch to bridge at U.S. Hwy. 23 
and 441 and from the bridge at U.S. 
Hwy. 23 and 441 to the Little Tennes- 
see River was reclassified from Classes 
WS-III Tr and C Tr to Classes WS-III 
and B Tr and B Tr respectively. 

(2) Coweeta Creek (Index Nos. 2-10) from 
its source to the Little Tennessee River 
including all tributaries except Dryman 
Fork (Index No. 2-10-3) and North 
Fork Coweeta Creek (Index No. 
2-10-4) was reclassified from Classes C 
and C Tr to Classes B and B Tr. 

(h) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effective August 3, 1992 with the reclas- 
sification of all water supply waters (waters with 
a primary classification of WS-I, WS-II or WS- 
III). These waters were reclassified to WS-I, WS- 
II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(i) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area has been 
amended effective February 1, 1993 as follows: 



356 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



PROPOSED RULES 



(1) Bearwallow Creek from its source to 
2.3 miles upstream of the Toxaway 
River [Index No. 4-7-(l)] was revised 
to indicate the application of an addi- 
tional management strategy (referencing 
15A NCAC 2B .0201(d) to protect 
downstream waters; and 

(2) the Tuckaseegee River from its source 
to Tennessee Creek [Index No. 2-79- 
(0.5)] including all tributaries was 
reclassified from Classes WS-III&B Tr 
HQW, WS-III HQW and WS-III to 
Classes WS-III Tr ORW and WS-III 
ORW. 

£j) The Schedule of Classifications and Water 
Quality Standards for the Little Tennessee River 
Basin and Savannah River Drainage Area was 
amended effective March 1, 1995 with the reclassi- 
fication of Thorpe Reservoir (Lake Glenville) and 
its tributary Hurricane Creek [Index Nos. 2-79-23- 
(1) and 2-79-23-2. respectively! from Classes WS- 
III&B and WS-III Jr to Classes WS-III&B HOW 
and WS-III Tr HOW. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
143-21 5. 3(a)(1). 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Commission intends to amend rule cited 
as 15A NCAC 2B .0313. 

lhe proposed effective date of this action is 
March 1, 1995. 

lhe public hearing will be conducted at 7:00 
p.m. on August 16, 1994 at the Stokes County 
Government Center, Courtroom A , Danbury, North 
Carolina. 

Keason for Proposed Action: To reclassify Town 
Fork Creek in the Roanoke River Basin for water 
supply purposes. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend. Comments, 
statements, data and other information may be 
submitted in writing prior to, during or within 30 
days after the hearing (9-15-94) may be presented 
verbally at the hearing. Verbal statements may be 



limited at the discretion of the hearing officer. 
Submittal of written copies of verbal statements is 
encouraged. Comments or questions may be 
addressed to Steve Zoufaly, Division of Environ- 
mental Management, P.O. Box 29535, Raleigh, 
N C 27626-0535, (919) 733-5083. 

t'iscal I\ote: This Rule affects the expenditure 
or revenues of local funds. A fiscal note was 
submitted to the Fiscal Research Division on 
November 22, 1993, OSBM on November 22, 
1993, N.C. League of Municipalities on Novem- 
ber 22, 1993, and N.C. Association of County 
Commissioners on November 22, 1993. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0313 ROANOKE RIVER BASIN 

(a) Places where the schedules may be inspect- 
ed: 

(1) Clerk of Court: 
Bertie County 
Caswell County 
Forsyth County 
Granville County 
Guilford County 
Halifax County 
Martin County 
Northampton County 
Person County 
Rockingham County 
Stokes County 
Surry County 
Vance County 
Warren County 
Washington County 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources: 

(A) Raleigh Regional Office 
3800 Barrett Drive 
Raleigh, North Carolina 

(B) Washington Regional Office 
1424 Carolina Avenue 
Washington, North Carolina 

(C) Winston-Salem Regional Office 
8025 North Point Boulevard, Suite 
100 



9:6 



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June 15, 1994 



357 



PROPOSED RULES 



Winston-Salem, North Carolina 

(b) Unnamed Streams. Such streams entering 
Virginia are classified "C." Except that all back- 
waters of John H. Kerr Reservoir and the North 
Carolina portion of streams tributary thereto not 
otherwise named or described shall carry the 
classification "B," and all backwaters of Lake 
Gaston and the North Carolina portion of streams 
tributary thereto not otherwise named or described 
shall carry the classification "C and B". 

(c) The Roanoke River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) May 18, 1977; 

(2) July 9, 1978; 

(3) July 18, 1979; 

(4) July 13, 1980; 

(5) March 1, 1983; 

(6) August 1, 1985; 

(7) February 1, 1986; 

(8) July 1, 1991; 

(9) August 3, 1992; 
(10) March 1. 1995. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Roanoke River Basin 
was amended effective July 1, 1991 with the 
reclassification of Hyco Lake (Index No. 22-58) 
from Class C to Class B. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Roanoke River Basin 
was amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I. 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Roanoke River Basin 
was amended effective March _L 1995 with the 
reclassification of Town Fork Creek Undex No. 
22-25-(0.5)l from its source to the Stokes County 
water supply intake (at the Stokes-Forsyth County 
line) including tributaries from Class C to Classes 
C WS-III and WS-III CA. 



Statutory Authority G.S. 
143-215. 3(a)(1). 



143-214.1; 143-215.1, 



****************** 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15ANCAC 10D .0003. 

1 he proposed effective date of this action is 
September 1. 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on July 6, 1994 at the Richmond County 
Courthouse, Rockingham, NC. 

Iveason for Proposed Action: To establish/modify 
hunting seasons on game lands. 

Lsomment Procedures: Interested persons may 
present their \iews either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
June 15, 1994 to July 15, 1994. Such written 
comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1 188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10D - GAME LANDS 
REGULATIONS 

.0003 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while 
hunting on any designated game land shall be 
under the influence of alcohol or any narcotic 
drug, or fail to comply with special restrictions 
regarding the use of the Blue Ridge Parkway 
where it adjoins game lands listed in this Rule. 

(b) Traffic Requirements. No person shall park 
a vehicle on game lands in such a manner as to 
block traffic, gates or otherwise prevent vehicles 
from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to 
occupy, for the purpose of hunting, any tree stand 
or platform attached by nails, screws, bolts or wire 
to a tree on any game land designated herein. 
This prohibition shall not apply to lag-screw steps 



358 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



PROPOSED RULES 



or portable stands that are removed after use with 
no metal left remaining in or attached to the tree. 

(d) Time and Manner of Talcing. Except where 
closed to hunting or limited to specific dates by 
these regulations, hunting on game lands is permit- 
ted during the open season for the game or 
furbearing species being hunted. On managed 
waterfowl impoundments, hunters shall not enter 
the posted impoundment areas earlier than 4:00 
a.m. on the permitted hunting dates, and hunting 
is prohibited after 1:00 p.m. on such hunting 
dates; decoys may not be set out prior to 4:00 
a.m. and must be removed by 3:00 p.m. each day. 
No person shall operate any vessel or vehicle 
powered by an internal combustion engine on a 
managed waterfowl impoundment. 

No person shall attempt to obscure the sex or age 
of any bird or animal taken by severing the head 
or any other part thereof, or possess any bird or 
animal which has been so mutilated. 

No person shall place, or cause to be placed on 
any game land, salt, grain, fruit, or other foods 
without prior written authorization of the commis- 
sion or its agent. No person shall take or attempt 
to take any game birds or game animals attracted 
to such foods. 

No live wild animals or wild birds shall be 
removed from any game land. 

(e) Hunting Dates: For purposes of this Section 
"Eastern" season refers to seasons set for those 
counties or parts of counties listed in 15 A NCAC 
10B .0203(b)(1)(A); "Central" season refers to 
seasons set for those counties or parts of counties 
listed in 15A NCAC 10B .0203(b)(1)(D); "North- 
western" season refers to seasons set for those 
counties or parts of counties listed in 15A NCAC 
10B .0203(b)(1)(B); "Western" season refers to 
seasons set for those counties or parts of counties 
listed in 15A NCAC 10B .0203(b)(1)(C). 

(1) Doves may be taken on the following 
game lands and dove hunting is limited 
to Mondays, Wednesdays, Saturdays 
and to Thanksgiving, Christmas and 
New Year's Days within the 
federally-announced season: 
Guilford County— Guilford County 
Farm Game Land 

Lenoir County—Caswell Farm Game 

Land 

Wayne County-Cherry Farm Game 

Land 

(2) Any game may be taken during the 
open seasons on the following game 
lands and hunting is limited to Mon- 
days, Wednesdays, Saturdays and 



Thanksgiving, Christmas and New 
Year's Days. In addition, deer may be 
taken with bow and arrow on the open- 
ing day of the bow and arrow season 
for deer. Special hunts on other days 
may also be set up for participants in 
the Disabled Sportsman Program. 
Raccoon and opossum hunting may 
continue until 7:00 a.m. on Tuesdays, 
until 7:00 a.m. on Thursdays, and until 
midnight on Saturdays. Additional 
restrictions apply as indicated in paren- 
theses following specific designations: 
Ashe County— Carson Woods Game 
Land 

Bladen County— Bladen Lakes State 
Forest Game Lands (Handguns may not 
be carried and, except for 
muzzle-loaders, rifles larger than .22 
caliber rimfire may not be used or 
possessed. On the Breece Tract and the 
Singletary Tract deer and bear may be 
taken only by still hunting. Deer of 
either sex may be taken Mondays, 
Wednesdays, and Saturdays from the 
first Wednesday after Thanksgiving 
through the following Wednesday. 
Deer of either sex may also be taken 
the Saturday preceding Eastern bow 
season with bow and arrow and the 
Friday preceding the Eastern muzzle- 
loading season with any legal weapon 
(with weapons exceptions described in 
this Paragraph) by participants in the 
Disabled Sportsman Program. Wild 
turkey hunting is by permit only.) 
Caswell County—Caswell Game Land-- 
(Deer of either sex may also be taken 
the Friday preceding the Central muz- 
zle-loading season by participants in the 
Disabled Sportsman Program.) 
Catawba and Iredell Counties— Catawba 
Game Land (No deer may be taken 
from the tract known as Island Point 
and deer may be taken with bow and 
arrow only from the tract known as 
Molly's Backbone.) 

Lenoir County-H.M. Bizzell, Sr., 
Game Land 

Onslow County— White Oak River 
Impoundment Game Land (In addition 
to the dates above indicated, waterfowl 
may be taken on the opening and clos- 
ing days of the applicable waterfowl 
seasons.) 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



359 





PROPOSED RULES 




Pender County— Holly Shelter Game 


Robeson County— Bullard and Branch 




Land (In addition to the dates above 


Hunting Preserve Game Land 




indicated, waterfowl may be taken on 


Sampson County— Sampson Game 




the opening and closing days of the 


Lands 




applicable waterfowl seasons. Deer of 


Stokes County— Sauratown Plantation 




either sex may be taken on Mondays, 


Game Land 




Wednesdays, and Saturdays from the 
first Wednesday after Thanksgiving 


Wavne Countv-Cherrv Farm Game 




Land. (The use of centerfire rifles and 




through the third Saturday after 


handguns is prohibited.) 




Thanksgiving.) Deer of either sex may 


Yadkin County— Huntsville Community 




also be taken the Friday preceding the 


Farms Game Land 




Eastern muzzle-loading season with any 


(3) Any game may be taken on the follow- 




legal weapon and the Saturday preced- 


ing game lands during the open season, 




ing Eastern bow season with bow and 


except that: 




arrow by participants in the Disabled 


(A) Bears may not be taken on lands 




Sportsman Program.) 


designated and posted as bear sanctu- 




Richmond, Scotland and Moore 


aries; 




Counties— Sandhills Game Land (The 


(B) Wild boar may not be taken with the 




regular gun season for deer consists of 


use of dogs on such bear sanctuaries, 




the open hunting dates from the second 


and wild boar may be hunted only 




Monday before Thanksgiving to the 


during the bow and arrow seasons, 




third Saturday after Thanksgiving ex- 


the muzzle-loading deer season and 




cept on the field trial grounds where the 


the regular gun season on male deer 




gun season is from the second Monday 


on bear sanctuaries located in and 




before Thanksgiving to the Saturday 


west of the counties of Madison, 




following Thanksgiving. Deer may be 


Buncombe, Henderson and Polk; 




taken with bow and arrow on all open 


(C) On game lands open to deer hunting 




hunting dates during the bow and arrow 


located in or west of the counties of 




season, as well as during the regular 


Rockingham, Guilford, Randolph, 




gun season. Deer may be taken with 


Montgomery and Anson, the follow- 




muzzle-loading firearms on Monday, 


ing rules apply to the use of dogs 




Wednesday and Saturday of the second 


during the regular season for hunting 




week before Thanksgiving week, and 


deer with guns: 




during the regular gun season. Either 


(i) Except for the counties of Chero- 




sex deer hunting with any legal weapon 


kee, Clay, Graham, Jackson, 




will also be permitted on all areas the 


Macon, Madison, Polk, and 




Thursday and Friday prior to the muz- 


Swain, game birds may be hunted 




zle-loading season described in this 


with dogs. 




Paragraph for participants in the Dis- 


(ii) In the counties of Cherokee, Clay, 




abled Sportsman Program. Except for 


Graham, Jackson, Macon, Madi- 




the deer seasons above indicated and 


son, Polk, and Swain, small game 




the managed either-sex permit hunts, 


in season may be hunted with 




the field trial grounds are closed to all 


dogs on all game lands except on 




hunting during the period October 22 to 


bear sanctuaries. 




March 31. In addition to the regular 


(D) On Croatan, Jordan, and Shearon 




hunting days, waterfowl may be taken 


Harris Game Lands, and posted wa- 




on the opening and closing days of the 


terfowl impoundments on Goose 




applicable waterfowl seasons.) Wild 


Creek Game Lands, waterfowl may 




turkev hunting is bv permit onJv. Dove 


be taken only on Mondays, Wednes- 




hunting on the field trial grounds will 


days, Saturdays; on Thanksgiving, 




be prohibited from the second Sunday 


Christmas and New Year's Days; and 




in September through the remainder of 


on the opening and closing days of 




the hunting season. 


the applicable waterfowl seasons. 




Robeson County— Robeson Game Land 


After November 1, on the Pamlico 
Point, Campbell Creek, and Spring 


360 


9:6 NORTH CAROLINA REGISTER June 15, 1994 



PROPOSED RULES 



Creek impoundments, located on the 
Goose Creek Game Lands, a special 
permit is required for hunting on 
opening and closing days of the duck 
seasons, Saturdays of the duck sea- 
sons, and on Thanksgiving and New 
Year's day; 

(E) On the posted waterfowl impound- 
ments of Gull Rock Game Land hunt- 
ing of any species of wildlife is limit- 
ed to Mondays, Wednesdays, Satur- 
days; Thanksgiving, Christmas, and 
New Year's Days; and the opening 
and closing days of the applicable 
waterfowl seasons; 

(F) On bear sanctuaries in and west of 
Madison, Buncombe, Henderson and 
Polk Counties dogs may not be 
trained or allowed to run unleashed 
between March 1 and October 1 1 ; 

(G) On Anson, New Lake, Pee Dee Riv- 
er, Pungo River, and Gull Rock 
Game Lands deer of either sex may 
be taken from the first Wednesday 
after Thanksgiving through the third 
Saturday after Thanksgiving. 

(H) On Butner-Falls of Neuse and Person 
Game Lands waterfowl may be taken 
only on Tuesdays, Thursdays and 
Saturdays, Christmas and New Year's 
Days, and on the opening and closing 
days of the applicable waterfowl 
seasons; 
(I) On Angola Bay, Butner-Falls of 
Neuse, Goose Creek, Hofmann For- 
est, and Sutton Lake Game Lands 
deer of either sex may be taken from 
the first Wednesday after Thanksgiv- 
ing through the following Saturday; 

(J) On Croatan and Neuse River Game 
Lands deer of either sex may be taken 
from the first Wednesday after 
Thanksgiving through the following 
Tuesday; 

(K) Horseback riding is allowed on the 
Caswell and Thurmond Chatham 
game lands only during June, July, 
and August and on Sundays during 
the remainder of the year except 
during open turkey and deer seasons. 
Horseback riding is allowed only on 
roads opened to vehicular traffic. 
Participants must obtain a game lands 
license prior to engaging in such 
activity; 



(L) On the posted waterfowl impound- 
ments on the Jordan and Butner-Falls 
of Neuse game lands a special permit 
is required for all waterfowl hunting. 

(M) Additional restrictions or modifica- 
tions apply as indicated in parentheses 
following specific designations: 
Alexander and Caldwell 
Counties— Brushy Mountains Game 
Lands 

Anson County— Anson Game Land 
Anson, Montgomery, Richmond and 
Stanly Counties— Pee Dee River Game 
Lands 

Ashe County— Elk Ridge Game Lands 
Ashe County— Cherokee Game Lands 
Ashe and Watauga Counties—Elk 
Knob Game Land 

Avery, Buncombe, Burke, Caldwell, 
Haywood, Henderson, Jackson, Madi- 
son, McDowell, Mitchell, 
Transylvania, Watauga and Yancey 
Counties—Pisgah Game Lands 
(Harmon Den and Sherwood Bear 
Sanctuaries in Haywood County are 
closed to hunting raccoon, opossum 
and wildcat. Training raccoon and 
opossum dogs is prohibited from 
March 1 to October 1 1 in that part of 
Madison County north of the French 
Broad River, south of US 25-70 and 
west of SR 1319.) 
Bertie— Bertie County Game Land 
Bertie and Washington 
Counties— Bachelor Bay Game Lands 
Beaufort and Pamlico 
Counties— Goose Creek Game Land 
Brunswick County— Green Swamp 
Game Land 

Burke and Cleveland Counties— South 
Mountains Game Lands 
Caldwell, Watauga and Wilkes 
Counties— Yadkin Game Land 
Camden— Camden County Game Land 
Carteret, Craven and Jones 
Counties— Croatan Game Lands 
Chatham County— Chatham Game 
Land 

Chatham, Durham, Orange, and 
Wake Counties— Jordan Game Lands 
(On areas posted as "archery zones" 
hunting is limited to bow and arrow. 
Horseback riding, including all equine 
species, is prohibited. Target shoot- 
ing is prohibited.) 



9:6 



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June 15, 1994 



361 



PROPOSED RULES 



Chatham and Wake Counties--Shearon 
Harris Game Land 

Cherokee, Clay, Graham, Jackson, 
Macon, Swain and Transylvania 
Counties— Nantahala Game Lands. 
Raccoon and opossum may be hunted 
only from sunset Friday until sunrise 
on Saturday and from sunset until 
12:00 midnight on Saturday on Fires 
Creek Bear Sanctuary in Clay County 
and in that part of Cherokee County 
north of US 64 and NC 294, east of 
Persimmon Creek and Hiwassee 
Lake, south of Hiwassee Lake and 
west of Nottely River; in the same 
part of Cherokee County dog training 
is prohibited from March 1 to Octo- 
ber 11. It is unlawful to train dogs or 
allow dogs to run unleased on any 
game land in Graham County between 
March 1 and October 11. 
Chowan County— Chowan Game Land 
Cleveland County—Gardner- Webb 
Game Land 

Craven County— Neuse River Game 
Land 

Currituck County— North River Game 
Land 

Currituck County— Northwest River 
Marsh Game Land 

Dare County— Dare Game Land (No 
hunting on posted parts of bombing 
range.) 

Davidson, Davie. Montgomery, 
Rowan and Stanly Counties— Alcoa 
Game Land 

Davidson County— Linwood Game 
Land 

Davidson, Montgomery and Randolph 
Counties— Uwharrie Game Land 
Duplin and Pender Counties— Angola 
Bay Game Land 

Durham, Granville and Wake 
Counties— Butner-Falls of Neuse 
Game Land (On that part marked as 
the Penny Bend Rabbit Research Area 
no hunting is permitted. Horseback 
riding, including all equine species, is 
prohibited. Target shooting is prohib- 
ited.) 

Gates County—Chowan Swamp Game 
Land 

Henderson, Polk and Rutherford 
Counties— Green River Game Lands 
Hyde County-Gull Rock Game Land 



.4) 



Hyde County— Pungo River Game 
Land 

Hyde and Tyrrell Counties— New 
Lake Game Land 
Jones and Onslow Counties— Hofmann 
Forest Game Land 
Lee County— Lee Game Land 
McDowell and Rutherford 
Counties— Dysartsville Game Lands 
Moore County— Moore Game Land 
New Hanover County— Sutton Lake 
Game Land 

Person County— Person Game Land 
Transylvania County— Toxaway Game 
Land (Deer of either sex may be 
taken with a bow and arrow on the 
Saturday prior to the first segment of 
the Western bow and arrow season by 
participants of the Disabled Sportsman 
Program.) 

Tyrrell and Washington 
Counties-Lantern Acres Game Land 
Vance County— Vknce Game Land. 
(The use of dogs, centerfire rifles and 
handguns for hunting deer is prohibit 
ed on the Nutbush Peninsula tract of 
Vance Game Lands.) 
Wilkes County— Thurmond Chatham 
Game Land (Deer of either sex may 
be taken with bow and arrow on the 
Saturday prior to Northwestern bow 
and arrow season by participants of 
the Disabled Sportsman Program.) 
Deer of either sex may be taken on the 
hunt dates indicated by holders of per- 
mits to participate in managed hunts 
scheduled and conducted in accordance 
with this Subparagraph on the game 
lands or portions of game lands includ- 
ed in the following schedule: 
Friday and Saturday of the first week 
after Thanksgiving Week: 

Uwharrie and Alcoa southeast of 
NC 49 
Thursday and Friday of the week be 
fore Thanksgiving Week: 
Sandhills east of US 1 
Sandhills west of US 1 
Application forms for permits to partici- 
pate in managed deer hunts on game 
lands, together with pertinent informa- 
tion and instructions, may be obtained 
from hunting and fishing license agents 
and from the Wildlife Resources Com- 
mission. Completed applications must 



362 



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June 15, 1994 



PROPOSED RULES 



be received by the Commission not 
later than the first day of September 
next preceding the dates of hunt. Per- 
mits are issued by random computer 
selection, are mailed to the permittees 
prior to the hunt, and are nontransfer- 
able. A hunter making a kill must tag 
the deer and report the kill to a wildlife 
cooperator agent. 
(5) The following game lands and Federal 
Wildlife Refuge are closed to all hunt- 
ing except to those individuals who 
have obtained a valid and current per- 
mit from the Wildlife Resources Com- 
mission: Bertie, Halifax and Martin 
Counties— Roanoke River Wetlands; 

Bertie County—Roanoke River 
National Wildlife Refuge. 
Dare County— Dare Game Lands 
(Those parts of bombing range 
posted against hunting) 
Davie-Hunting Creek Swamp 
Waterfowl Refuge 
Gaston, Lincoln and Mecklenburg 
Counties—Cowan's Ford Water- 
fowl Refuge. 

Statutory Authority G.S. 113-134; 113-264; 
113-291.2; 113-291.5; 113-305. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as 15 A NCAC 10J . 0003 and . 0004. 

Ihe proposed effective date of this action is 
September 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on June 30, 1994 at the Wildlife Resources 
Commission, Archdale Building, Conference 
Room, 3rd Floor, 512 N. Salisbury Street, Ra- 
leigh, NC 27604-1188. 

Reason for Proposed Action: 

15A NCAC 10J .0003 - To regulate/prohibit 

hunting on game lands. 

ISA NCAC 10J .0004 - To regulate /prohibit 

fishing on wildlife conservation areas. 



{comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
June 15, 1994 to July 15, 1994. Such written 
comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

SUBCHAPTER 10J - WILDLIFE 

CONSERVATION AREA 

REGULATIONS 

.0003 HUNTING ON WILDLIFE 
CONSERVATION AREAS 

(a) Safety Requirements. No person while 
hunting on any area designated and posted as a 
wildlife conservation area shall be under the 
influence of alcohol or any narcotic drug. 

(b) Tree Stands. It is unlawful to erect or to 
occupy, for the purpose of hunting, any tree stand 
or platform attached by nails, screws, bolts or wire 
to a tree on any area designated and posted as a 
wildlife conservation area. This prohibition shall 
not apply to lag-screw steps or portable stands that 
are removed after use with no metal left remaining 
in or attached to the tree. 

(c) Time and Manner of Taking. Except where 
closed to hunting or limited to specific dates by 
these regulations, hunting on areas designated and 
posted as wildlife conservation areas is permitted 
during the open season for the game or furbearing 
species being hunted. Waterfowl hunters shall not 
enter the areas earlier than 4:00 a.m. on the 
permitted hunting dates, and hunting is prohibited 
after 1:00 p.m. on such hunting dates; decoys may 
not be set out prior to 4:00 a.m. and must be 
removed by 3:00 p.m. each date. No person shall 
operate any vessel or vehicle powered by an 
internal combustion engine on the waters of any 
area designated and posted as a wildlife conserva- 
tion area. No person shall attempt to obscure the 
sex or age of any bird or animal taken by severing 
the head or any other part thereof, or possess any 
bird or animal which has been so mutilated. No 
person shall place, or cause to be placed on any 
area designated and posted as a wildlife conserva- 
tion area, salt, grain, fruit, or other foods without 
prior written authorization of the Commission or 
its agent and no person shall take or attempt to 
take any game birds or game animals attracted to 
such foods. No person shall use an electronic 
calling device for the purpose of attracting wild 
birds or wild animals. No live wild animals or 



9:6 



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June 15, 1994 



363 



PROPOSED RULES 



wild birds shall be removed from any designated 
wildlife conservation area except with the written 
permission of the landowner, 
(d) Hunting Dates: 

(1) Any game may be taken during the 
open seasons on the following wildlife 
conservation areas and hunting is limit- 
ed to Mondays, Wednesdays, Saturdays 
and Thanksgiving, Christmas and New 
Year's Days. In addition, deer may be 
taken with bow and arrow on the open- 
ing day of the bow and arrow season 
for deer. Raccoon and opossum hunt- 
ing may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thurs- 
days, and until midnight on Saturdays. 
Additional restrictions apply as indicat- 
ed in parentheses following specific 
designations: 

NO WILDLIFE CONSERVATION AREAS 
LISTED FOR HUNTING AT THIS TIME 

(2) Except — as — otherwise — indicated, — tfee 
following designated wildlife oonscrva 
tion areas or indicated portions thereof 
arc clo s ed to all hunting: Richmond 

County Nona — Pitt — Hinson — Cohen 

Wildlife Conservation Area. Except as 
otherwise indicated, the following 
designated wildlife conservation areas 
or indicated portions thereof are closed 
to all hunting: 

(A) Nona Pitt Hinson Cohen Wildlife 
Conservation Area z Richmond Coun- 

(B) John D Lewis Wildlife Conservation 
Area ; Wayne County. 

Statutory Authority G.S. 113-134; 113-264; 
113-291.2; 113-291.5; 113-305. 

.0004 FISHING ON WILDLIFE 
CONSERVATION AREAS 

(a) Generally. Except as otherwise indicated 
herein, fishing on designated wildlife conservation 
areas which are open to fishing shall be in accor- 
dance with the statewide regulations. All designat- 
ed wildlife conservation areas are open to public 
fishing except restocked ponds when posted against 
fishing. No trotline or set-hook nor any net, trap, 
gig or other special fishing device of a type men- 
tioned in 15 NCAC 10C .0403 except bow and 
arrow may be used in any of the impounded 
waters or free-running streams located on designat- 



ed wildlife conservation areas. Except as other- 
wise indicated, the following designated wildlife 
conservation areas or indicated portions thereof are 
closed to all fishing, except for special fishing 
clinics authorized or conducted by the Commis- 
sion: John D. Lewis Wildlife Conservation Area : 
Wayne County. 

(b) Designated Public Mountain Trout Waters: 
Fishing Hours. It is unlawful to fish in designated 
public mountain trout waters on any designated 
wildlife conservation area from one-half hour after 
sunset to one-half hour before sunrise. 

Statutory Authority G.S. 113-134; 113-264; 
113-272; 113-292; 113-305. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Solid Waste Man- 
agement intends to amend rule cited as 15 A NCAC 
13B .1603. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on July 6, 1994 at the Ground Floor Hearing 
Room, Archdale Building, 512 North Salisbury 
Street, Raleigh, NC. 

MXeasonfor Proposed Action: Amendment of Rule 
.1603 is necessary to further delineate circum- 
stances requiring owners and operators of munici- 
pal solid waste landfill facilities (MSWLFs) to 
submit a permit application. 

(comment Procedures: Any person requiring 
information may contact Mr. Brad Rutledge, 
Division of Solid Waste Management, Solid Waste 
Section, Post Office Box 27687, Raleigh, NC 
27611-7687, Telephone (919) 733-0692. Written 
comments may be submitted to the above address 
no later than July 15, 1994. Notice of an oral 
presentation may be given to the above address at 
least 3 days prior to the public hearing. 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13B - SOLID 
WASTE MANAGEMENT 



364 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



PROPOSED RULES 



SECTION .1600 - REQUIREMENT 

FOR MUNICIPAL SOLID WASTE 

LANDFILL FACILITIES (MSWLFs) 

.1603 GENERAL APPLICATION 

REQUIREMENTS AND PROCESSING 

(a) Applicability. An owner and operator of a 
proposed or existing facility shall submit an appli- 
cation document as detailed in Rule .1617 of this 
Section according to the criteria and scheduling 
requirements set forth in this Paragraph. 

(1) New facility. An owner and operator 
proposing to establish a MSWLF facili- 
ty according to the following criteria 
shall submit a Site Study and subse- 
quently, an application for a permit to 
construct as set forth in Paragraph (a) 
of Rule .1617. 

(A) The owner and operator proposes to 
establish a new facility not previously 
permitted by the Division. 

(B) The owner or operator proposes 
expanding the landfill facility in order 
to expand the MSWLF unit boundary 
approved in accordance with Subpara- 
graph (a)(1) of Rule .1618. 

(C) The owner or operator of an existing 
facility is scheduled to close an exist- 
ing MSWLF unit not constructed with 
a base liner system and proposes to 
establish a new MSWLF unit. 

(D) A transfer of facility ownership is 
proposed. 

(E) The owner or operator proposes to A 
substantial change to the waste s tream 
defined in the effective permit the 
service area of an existing MSWLF 
unit, if an increase in permitted ca- 
pacity would also be required. 

(F) The owner or operator of an unlined 
existing MSWLF unit proposes to 
receive waste from generators whose 
waste is currently being disposed in a 
lined MSWLF unit. 

(2) Amendment to the permit. A permit to 
construct issued in accordance with 
Paragraph (c) of this Rule approves a 
facility plan for the life of the MSWLF 
facility and a set of plans for the initial 
phase of landfill development. The 
owner and operator shall prepare an 
application to amend the permit to 
construct for any subsequent phase of 
landfill development in accordance with 



Paragraph (b) of Rule .1617 and submit 
the application: 

(A) At least 180 days prior to the date 
scheduled for commencing construc- 
tion; or 

(B) Five years from the issuance date of 
the initial permit to construct or the 
most recent amendment, whichever 
occurs first. 

(3) Modifications to the permit. An owner 
or operator proposing changes to the 
plans approved in the permit shall 
request prior approval from the Divi- 
sion in accordance with Paragraph (c) 
of Rule .1617. 

(4) Transition for existing facilities. 

(A) Existing MSWLF units. The owner 
and operator of an existing MSWLF 
unit shall submit an application for 
continuing operation and closing the 
MSWLF unit. The application shall 
be prepared in accordance with Para- 
graph (d) of Rule .1617 and shall be 
submitted on or before April 9, 1994. 
The operation plan required in the 
transition application shall be pre- 
pared and submitted according to Rule 
.1625 of this Section. 

(B) Lateral expansion and new MSWLF 
units. Construction of a lateral ex- 
pansion of an existing MSWLF unit 
or a new MSWLF unit is subject to 
the application requirements for per- 
mit renewal set forth in Subparagraph 
(5) of this Paragraph, unless the 
criteria set forth in Part (1)(C) of this 
Paragraph is applicable. 

(5) Permit renewal. The owner and opera- 
tor shall prepare and submit an applica- 
tion for permit renewal in accordance 
with Paragraph (e) of Rule .1617 and 
the following: 

(A) The following criteria is established 
for the scheduling permit renewal: 
(i) Location of the MSWLF unit 
conforms to the requirements set 
forth in Items (1), (2), (3), (4), 
(5), and (6) of Rule .1622; 
(ii) Construction of the MSWLF unit 
is approved by the effective per- 
mit and conforms to the require- 
ments of Subparagraph (b)(1) of 
Rule .1624; and 
(iii) Updated operation, closure and 
post-closure, and monitoring plans 



NORTH CAROLINA REGISTER 



June 15, 1994 



365 



PROPOSED RULES 



meet the requirements set forth in 
this Section. 

(B) An owner or operator that demon- 
strates compliance with the criteria set 
forth in Part (A) of this Subparagraph 
shall submit an application five years 
from the issuance date of the original 
permit to construct or at least 180 
days prior to the date scheduled for 
constructing a phase of landfill devel- 
opment not approved in the effective 
permit to construct, whichever occurs 
first. 

(C) An owner or operator that cannot 
demonstrate compliance with the 
criteria set forth in Part (A) of this 
Subparagraph shall submit an applica- 
tion at least 180 days prior to the date 
scheduled for commencing construc- 
tion of the base liner system. 

(b) Application format guidelines. All applica- 
tions and plans required by this Section shall be 
prepared in accordance with the following guide- 
lines: 

(1) The initial application shall: 

(A) Contain a cover sheet, stating the 
project title and location, the 
applicant's name, and the engineer's 
name, address, signature, date of 
signature and seal; and 

(B) Contain a statement defining the 
purpose of the submittal signed and 
dated by the applicant. 

(2) The text of the application shall: 

(A) Be submitted in a three ring binder; 

(B) Contain a table of contents or index 
outlining the body of the application 
and the appendices; 

(C) Be paginated consecutively; and 

(D) Identify revised text by noting the 
date of revision on the page. 

(3) Drawings. The engineering drawings 
for all landfill facilities shall be submit- 
ted using the following format: 

(A) The sheet size with title blocks shall 
be at least 22 inches by 34 inches. 

(B) The cover sheet shall include the 
project title, applicant's name, sheet 
index, legend of symbols, and the 
engineer's name, address, signature, 
date of signature, and seal. 

(C) Where the requirements do not explic- 
itly specify a minimum scale, maps 
and drawings shall be prepared at a 



scale which adequately illustrates the 
subject requirement(s). 
(4) Number of copies. An applicant shall 
submit a minimum of five copies of 
each original application document and 
any revisions to the Division. The 
Division may request additional copies 
as necessary, 
(c) Permitting and public information proce- 
dures. 

(1) Purpose, Scope and Applicability. 

(A) Purpose. The permitting process shall 
provide for public review of and input 
to permit documents containing the 
applicable design and operating condi- 
tions and shall provide for consider- 
ation of comments received and notifi- 
cation to the public of the final permit 
design. 

(B) Scope. Public participation in the 
permitting process shall ensure that 
the public is informed regarding 
decisions affecting the management of 
MSWLFs located in their community. 
Public comment regarding permit 
renewals for existing facilities shall be 
limited to new information pertinent 
to the permit to construct a lateral 
expansion or a new MSWLF unit. 

(C) Applicability. Applications for Permit 
to Construct a new facility or permit 
renewals for an existing facility or a 
modification to the permit involving 
corrective remedy selection required 
by Rule .1636 of this Section shall be 
subject to the requirements of this 
Paragraph. Applications submitted in 
accordance with Subparagraphs (a)(2), 
(a)(3), and (a)(4)(A) of this Rule are 
not subject to the requirements of this 
Paragraph . 

(2) Draft Permits. 

(A) Once an application is complete, the 
Division shall tentatively decide 
whether the permit should be issued 
or denied. 

(B) If the Division decides the permit 
should be denied, a notice to deny 
shall be sent to the applicant. Rea- 
sons for permit denial shall be in 
accordance with Rule .0203(e) of this 
Subchapter. 

(C) If the Division tentatively decides the 
permit should be issued, a draft per- 
mit shall be prepared. 



366 



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June 15, 1994 



PROPOSED RULES 



(D) A draft permit shall contain (either 
expressly or by reference) all applica- 
ble terms and conditions for the per- 
mit. 

(E) All draft permits shall be subject to 
the procedures of Subparagraphs (3), 
(4), (5), (6), (7) and (8) of this Para- 
graph, unless otherwise specified in 
those Subparagraphs. 

(3) Fact Sheets. 

(A) A fact sheet shall be prepared for 
every draft permit or notice to deny 
the permit. 

(B) The feet sheet shall briefly set forth 
the principal fects and the significant 
factual, legal, methodological and 
policy questions considered in prepar- 
ing the draft permit to include, when 
applicable: 

(i) A brief description of the type of 
facility or activity which is the 
subject of the draft permit; 
(ii) The type and quantity of wastes 
which are proposed to be or are 
being disposed of; 
(iii) A brief summary of the basis for 
the draft permit conditions includ- 
ing references to applicable statu- 
tory or regulatory provisions and 
appropriate supporting references 
to the permit application; 
(iv) A description of the procedures 
for reaching a final decision on 
the draft permit, including: 
(I) The beginning and ending 
dates of the comment period 
under Subparagraph (4) of this 
Paragraph and the address 
where comments will be re- 
ceived; 
(II) Procedures for requesting a 

public hearing; and 
(III) Any other procedures by 
which the public may partici- 
pate in the final decision; and 
(v) Name and telephone number of a 
person to contact for additional 
information. 

(C) The Division shall send this feet sheet 
to the applicant and, upon request to 
any other person. 

(4) Public Notice of Permit Actions and 
Public Comment Period. 

(A) Scope. 



(i) The Division shall give public 
notice that the following actions 
have occurred: 
(I) A draft permit has been pre- 
pared; or 
(II) A public hearing has been 
scheduled under Subparagraph 
(6) of this Paragraph; or 
(III) A notice of intent to deny a 
permit has been prepared 
under Part (2)(B) of this Para- 
graph, 
(ii) No public notice is required when 
a request for a permit modifica- 
tion is denied, 
(iii) Written notice of denial shall be 

given to the permittee, 
(iv) Public notices may describe more 
than one permit or permit action. 

(B) Timing. 

(i) Public notice of the preparation of 
a draft permit or a notice of intent 
to deny a permit shall allow at 
least 45 days for public comment. 

(ii) Public notice of a public hearing 
shall be given at least 15 days 
before the hearing. (Public notice 
of the hearing may be given at the 
same time as public notice of the 
draft permit and the two notices 
may be combined.) 

(C) Methods. Public notice of activities 
described in Subpart (A)(i) of this 
Subparagraph shall be given by the 
following: 

(i) By posting in the post office and 
public places of the municipalities 
nearest the site under consider- 
ation; or 

(ii) By publication of a notice in a 
daily or weekly local newspaper 
of general circulation; and 

(iii) By any other method deemed 
necessary or appropriate by the 
Division to give actual notice of 
the activities to persons potentially 
affected . 

(D) Contents. 

(i) General Public Notices. All 

public notices issued under this 

Part shall contain the following 

minimum information: 

(I) Name, address and phone 

number of the office process- 



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June 15, 1994 



367 



PROPOSED RULES 



ing the permit action for which 
notice is being given; 
(II) Name and address of the per- 
mittee or permit applicant and, 
if different, of the facility or 
activity regulated by the per- 
mit; 

(III) A brief description of the 
business conducted at the 
facility or activity described in 
the permit application includ- 
ing the size and location of the 
facility and type of waste 
accepted; 

(IV) A brief description of the 
comment procedures required 
by Subparagraphs (5) and (6) 
of this Paragraph, including a 
statement of procedures to 
request a public hearing (un- 
less a hearing has already been 
scheduled), and other proce- 
dures by which the public may 
participate in the final permit 
decision; 

(V) Name, address, and telephone 
number of a person from 
whom interested persons may 
obtain further information, 
including copies of draft per- 
mits and fact sheets; 
(VI) A description of the time 
frame and procedure for mak- 
ing a final determination on 
this facility application approv- 
al or disapproval; 
(VII) Any additional information 
considered necessary or proper 
as required by the Division, 
(ii) Public Notices for Public Hear- 
ing. In addition to the general 
public notice described in Subpart 
(i) of this Part, the public notice 
of a public hearing shall contain 
the following information: 
(I) Reference to the dates of 
previous public notices relating 
to the permit action; 
(II) Date, time, and place of the 

public hearing; and 
(III) A brief description of the 
nature and purpose of the 
public hearing, including the 
applicable rules and proce- 
dures; and 



(IV) A concise statement of the 
issues raised by the persons 
requesting the hearing. 

(5) Public Comments and Requests for 
Public Hearings. During the public 
comment period provided, any interest- 
ed person may submit written com- 
ments on the draft permit and may 
request a public hearing, if no hearing 
has already been scheduled. A request 
for a public hearing shall be in writing 
and shall state the nature of the issues 
proposed to be raised in the hearing. 
All comments shall be considered in 
making the final decision and shall be 
answered as provided in Subparagraph 
(9) of this Paragraph . 

(6) Public Hearings. 

(A) Public Hearing Criteria. 

(i) The Division shall hold a public 
hearing whenever on the basis of 
requests, a significant degree of 
public interest in a draft permit(s) 
is determined. 

(ii) The Division may also hold a 
public hearing at its discretion 
whenever such a hearing might 
clarify one or more issues in- 
volved in the permit decision. 

(iii) Public hearings held pursuant to 
this Rule shall be at a location 
convenient to the nearest popula- 
tion center to the subject facility. 

(iv) Public notice of the hearing shall 
be given as specified in Subpara- 
graph (4) of this Paragraph. 

(B) Any person may submit oral or writ- 
ten statements and data concerning the 
draft permit. Reasonable limits may 
be set upon the time allowed for oral 
statements, and the submission of 
statements in writing may be re- 
quired. The public comment period 
under Subparagraph (4) of this Para- 
graph shall automatically be extended 
to the close of any public hearing 
under this Subparagraph. The hearing 
officer may also extend the comment 
period by so stating at the hearing. 

(C) A tape recording or written transcript 
of the hearing shall be made available 
to the public. 

(7) Reopening of the Public Comment 
Period. 



368 



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PROPOSED RULES 



(A) If any data, information, or arguments 
submitted during the public comment 
period appear to raise substantial new 
questions concerning a permit action, 
the Division may take one or more of 
the following actions: 

(i) Prepare a new draft permit, ap- 
propriately modified, under Sub- 
paragraph (2) of this Paragraph; 
(ii) Prepare a fact sheet or revised 
fact sheet under Subparagraph (3) 
of this Paragraph and reopen the 
comment period under Subpara- 
graph (4) of this Paragraph; or 
(iii) Reopen or extend the comment 
period under Subparagraph (4) of 
this Paragraph to give interested 
persons an opportunity to com- 
ment on the information or argu- 
ments submitted. 

(B) Comments filed during the reopened 
comment period shall be limited to the 
substantial new questions that caused 
its reopening. The public notice 
under Subparagraph (4) of this Para- 
graph shall define the scope of the 
reopening. 

(C) Public notice of any of the actions of 
this Subparagraph shall be issued 
under Subparagraph (4) of this Para- 
graph. 

(8) Final Permit Decision. 

(A) After the close of the public comment 
period under Subparagraph (4) of this 
Paragraph on a draft permit or a 
notice of intent to deny a permit, the 
Division shall issue a final permit 
decision. The Division shall notify 
the applicant and each person who has 
submitted a written request for notice 
of the final permit decision. For the 
purposes of this Subparagraph, a final 
permit decision means a final decision 
to issue, deny or modify a permit. 

(B) A final permit decision shall become 
effective upon the date of the service 
of notice of the decision unless a later 
date is specified in the decision. 

(9) Response to Comments. 

(A) At the time that a final permit deci- 
sion is issued under Subparagraph (8) 
of this Paragraph, the Division shall 
issue a response to comments. This 
response shall: 



(i) Specify which provisions, if any, 
of the draft permit have been 
changed in the final permit deci- 
sion, and the reasons for the 
change; and 
(ii) Briefly describe and respond to all 
significant comments on the draft 
permit raised during the public 
comment period, or during any 
public hearing. 
(B) The response to comments shall be 
made available to the public, 
(d) Permit approval or denial. 

(1) The Division shall review all permit 
applications in accordance with Rule 
.0203 of Section .0200. 

(2) Transition for existing facilities. The 
Division shall review applications sub- 
mitted in accordance with Paragraph (d) 
of Rule .1617 according to the follow- 
ing schedule and criteria. 

(A) The Division shall establish a review 
schedule for the plans which deter- 
mines the adequacy of 50 percent of 
the plans by October 9, 1994 and 100 
percent of the plans by October 9, 
1996. 

(B) The Division may issue partial ap- 
proval for specific parts of an applica- 
tion. 

(C) The Division shall determine the 
schedule for closing an existing 
MSWLF unit based on its review of 
the complete transition application and 
the following factors: 

(i) Proximity of human and environ- 
mental receptors; 
(ii) Design of the MSWLF unit; 
(iii) Age of the MSWLF unit; 
(iv) The size of the MSWLF unit; 
(v) Type and quantities of waste 
disposed including sewage sludge; 
(vi) Compliance record of the owner 

and operator; 
(vii) A schedule for fulfilling the intent 
of the landfill design standards set 
forth in Rule .1624 of this Sec- 
tion; and 
(viii) Resource value of the underlying 
aquifer, including; current and 
future uses; proximity and with- 
drawal rate of users; and 
ground-water quality and quantity. 

Statutory Authority G.S. 130A-294. 



9:6 



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June 15, 1994 



369 



PROPOSED RULES 



****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as ISA 
NCAC 24A . 0201 - . 0203, . 0301 , . 0404 and . 0502 
- .0503. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 21 , 1994 at the Ground Floor Hear- 
ing Room, Archdale Building, 512 North Salisbury 
Street, Raleigh, NC. 

Ixeason for Proposed Action: 
15A NCAC 24A .0201 - The existing rule does not 
address the residency status of applicants from 
other countries who are living in North Carolina, 
or military families from other states who are 
stationed in North Carolina. The proposed amend- 
ment covers those categories and establishes in 
rule what our practice by policy has been. 
15A NCAC 24A .0202 - This amendment allows 
HIV Medications Program applicants who have 
been determined financially eligible for program 
coverage during the last quarter of a fiscal year to 
remain on the program through the end of the next 
fiscal year. This allows the patient's financial 
eligibility period to correspond to the program's 
authorization period for medications and allows 
time to process eligibility applications before the 
beginning of the authorization period. 
15A NCAC 24A .0203 - This amendment defines 
"unemployment" to mean that unemployment has 
occurred for at least 30 consecutive days. Under 
the current rule, which does not define unemploy- 
ment, some applicants claimed to have been 
unemployed when there were only a few days 
between the end of one job and the beginning of 
another. That situation violated the intent of the 
rule. 

15 A NCAC 24 A .0301 - This amendment expands 
the definition of "earned income" to include 
self-employment income, as well as salaries and 
wages. 

15A NCAC 24A . 0404 - This proposed amendment 
establishes a departmental reimbursement rate for 
items of durable medical equipment (DME) which 
do not have Medicaid rates. This includes all 
mobility systems, including power and manual 



wheelchairs, transporter systems; environmental 
control units and custom seating systems. 
15A NCAC 24A .0502 - .0503 - This amendment 
is proposed for the purpose of broadening the 
scope of the rule to cover termination of all types 
of eligibility (not just financial eligibility). This 
amendment also brings the rule into compliance 
with recent changes in G.S. 1 30A-24(a. 1 . ) regard- 
ing notice of termination of benefits and the ap- 
peals period. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by August 1 , 1994. Persons who 
wish to speak at the hearing should contact Mr. 
Balentine at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTEREST- 



ED AND POTENTIALLY AFFECTED PERSONS. 



GROUPS, BUSINESSES, ASSOCIATIONS, INSTI- 



TUTIONS OR AGENCIES MAKE THEIR VIEWS 



AND OPINIONS KNOWN TO THE COMMISSION 



FOR HEALTH SERVICES THROUGH THE PUB- 



LIC HEARING AND COMMENT PROCESS, 



WHETHER THEY SUPPORT OR OPPOSE ANY 



OR ALL PROVISIONS OF THE PROPOSED 



RULES. 



THE COMMISSION MAY MAKE 



CHANGES TO THE RULES AT THE COMMIS- 
SION MEETING IF THE CHANGES COMPLY 
WITH G.S. 150B-21.2(f). 

CHAPTER 24 - GENERAL PROCEDURES 
FOR PUBLIC HEALTH PROGRAMS 

SUBCHAPTER 24A - PAYMENT 
PROGRAMS 

SECTION .0200 - ELIGIBILITY 
DETERMINATIONS 



370 



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PROPOSED RULES 



.0201 RESIDENCY REQUIREMENT 

(a) A person must be a permanent resident of 
North Carolina to be eligible for benefits provided 
by any of the payment programs, except as provid- 
ed in Paragraph {e) £d} of this Rule. 

(b) For the purposes of this Rule, all determina- 
tions of residency shall be governed by the follow- 
ing rules: 

(1) In order to be a resident of North Caro- 
lina, a person must^ not only live in the 
State but also have the intention of 
making hia permanent home in this 
State to which, whenever abacnt, he in 
tends to return. 
live jn this State, except as provided 
in Subparagraph (b)(6) of this Rule, 
pay North Carolina income tax if state 
income tax liability exists, 
have the intention of making his 



(6) 



£A) 



permanent home in this State, and 
intend to return to this State whenever 
absent. 

(2) An unemancipated minor has the resi- 
dence of the parent or other relative 
with whom he resides. If the minor 
does not reside with a parent or other 
relative, then the minor has the resi- 
dence of the adult with whom he re- 
sides. Any other minor is a resident of 
North Carolina if he is present in the 
State and either of his parents are resi- 
dents of North Carolina; if the resi- 
dence of the minor's mother and father 
is not known, the minor has the resi- 
dence of the place in which he is found. 

(3) Migrant worker s farmworkers and their 
families who are migrants as defined in 
rules of the Migrant Program or ks 
successor are considered residents of 
North Carolina while present in North 
Carolina for employment purposes. 

(4) Residence continues until a new one is 
acquired. — When a new re s idence i s 
acquired, all former re s idence s tcrmi 
natc. A pplicants who are citizens of 
other countries are considered residents 
of the State if they live in North Caroli- 
na and can document their intention to 
make North Carolina their permanent 
home with a visa allowing them to 
remain permanently or an a pplication 
for a resident visa or for citizenship. 

(5) Individuals in the military who were 
residents of other states and are sta- 
tioned in North Carolina are residents 



of North Carolina if they have formally 
declared North Carolina as their resi- 
dence where they intend to pay income 
taxes. 

North Carolina residents who are tem- 
porarily living in another state while 
attending school are for purposes of this 
Rule considered to be residents of 
North Carolina if they have not formal- 



ly_ changed their resident status to an- 
other state. 

(c) The state of residence continues until a new 
one is acquired. When a new state of residence is 
acquired, all former residences terminate. 

(d) The Director of a payment program may, in 
his discretion, make exceptions to the requirement 
of Paragraph (a) of this Rule in order to protect 
the public health when a communicable disease is 
involved. 

Statutory Authority G.S. 130A-5(3); 130A-124; 
130A-127; 130A-129; 130A-177; 130A-205. 

.0202 DETERMINATION OF FINANCIAL 
ELIGIBILITY 

(a) A patient must meet the financial eligibility 
requirements of this Subchapter to be eligible for 
benefits provided by the payment programs. 
Financial eligibility shall be determined through 
application of income scales. The definition of 
annual net income in Rule .0203 of this Subchapter 
and the definitions of family in Rule .0204 of this 
Subchapter shall be used in applying the income 
scales. 

(b) A person shall be financially eligible for 
inpatient services under the Sickle Cell Program, 
and for inpatient services under Children's Special 
Health Services if the person is age 8-20 if the net 
family income is at or below the following scale 
Family Size 1: $4,200; Family Size 2: $5,300 
Family Size 3: $6,400; Family Size 4: $7,500 
Family Size 5 and over: add $500 per family 
member. 

(c) A person shall be financially eligible for the 
Cancer Program, for outpatient services under the 
Sickle Cell Program, for outpatient services under 
Children's Special Health Services, and for inpa- 
tient services under Children's Special Health 
Services if the person is age 0-7, if the net family 
income is at or below the federal poverty level in 
effect on July 1 of each fiscal year. 

(d) A person shall be financially eligible for the 
HIV Medications Program if the net family income 
is at or below 85 percent of the federal poverty 
level in effect on April 1 of each fiscal year. 



9:6 



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371 



PROPOSED RULES 



(e) A person shall be financially eligible for the 
Kidney Program if the net family income is at or 
below the following scale: Family Size 1 
$6,400; Family Size 2: $8,000; Family Size 3 
$9,600; Family Size 4: $11,000; Family Size 5 
$12,000; Family Size 6 and over: add $800 per 
family member. 

(f) The financial eligibility requirements of this 
Subchapter shall not apply to: 

(1) Migrant Health Program; 

(2) Children's Special Health Services 
when the requirements of 15A NCAC 
21 F .0800 are met; 

(3) School Health Program financial eligi- 
bility determinations performed by a 
local health department which has 
chosen to use the financial eligibility 
standards of the Department of Public 
Instruction's free lunch program; 

(4) Prenatal outpatient services sponsored 
through local health department deliv- 
ery funds, 15A NCAC 21C .0200; or 
through Perinatal Program high risk 
maternity clinic reimbursement funds, 
15A NCAC 21C .0300; 

(5) Diagnostic assessments for infants up to 
12 months of age with sickle cell syn- 
drome. 

(g) Except as provided in Paragraph (h) of this 
Rule, once an individual is determined financially 
eligible for payment program benefits, the individ- 
ual shall remain financially eligible for a period of 
one year after the date of application for financial 
eligibility unless there is a change in the 
individual's family size pursuant to Rule .0204 of 
this Subchapter or his family's financial resources 
or expenses during that period. If there is a 
change, financial eligibility for payment program 
benefits must be redetermined. Financial eligibili- 
ty must be redetermined at least once a year. 

(h) For purposes of the Kidney Program and 
HIV Medications Program , once an individual is 
determined to be financially eligible, if the applica- 
tion for financial eligibility was received by the 
Department in the fourth quarter of the fiscal year, 
the individual shall remain financially eligible for 
benefits under the Kidney Program until the end of 
the next fiscal year unless there is a change in the 
individual's family size pursuant to Rule .0204 of 
this Subchapter or his family's financial resources 
or expenses during that period. 

(i) If the most current financial eligibility form 
on file with the Department shows that the patient 
was financially eligible on the date an Authoriza- 
tion Request for payment for drugs was received, 



the Authorization Request may be approved so 
long as the Authorization Request is received less 
than 30 days prior to the expiration of financial 
eligibility and the authorized service does not 
extend more than 30 days after the expiration of 
financial eligibility. 

Statutory Authority G.S. 130A-4.2; 130A-5(3); 
130A-124; 130A-127; 130A-129; 130A-205. 

.0203 ANNUAL NET FAMILY INCOME 

(a) Annual net family income shall be computed 
by subtracting the deductions allowed in Paragraph 
(d) of this Rule, from the gross family income as 
computed in Paragraph (c) of this Rule. 

(b) The time period to be used as the basis for 
computing annual net family income is the 
12-month period immediately preceding the date a 
patient or his representative makes application for 
eligibility to a particular payment program. 
However, if any of the family's — wage earners 
family members were unemployed at any time for 
at least 30 consecutive days during this 12-month 
period or are currently unemployed at the time the 
application is completed , that wage — earner's 
person's portion of the annual net family income 
shall be computed on the basis of income and 
deductions for the six month period immediately 
preceding the date of application plus a projection 
of income and deductions (excluding medical 
expenses) for the six month period immediately 
succeeding the date of application based upon the 
current employment or benefit situation. Medical 
expenses from the 12-month period immediately 
preceding the date of application may be deducted 
from income. 

(c) Gross Family Income: 

(1) Gross family income shall mean the 
combined gross cash income received 
by the patient's family from the follow- 
ing sources: 

(A) Salaries and wages; 

(B) Earnings from self-employment; 

(C) Investment income, stocks, bonds, 
savings account interest, rentals, and 
all other investment income; 

(D) Periodic trust fund payments; 

(E) Public assistance money; 

(F) Unemployment compensation; 

(G) Alimony and child support payments 
received; 

(H) Military allotments; 

(I) Social Security benefits; 

(J) Veteran's Administration benefits; 
(K) Retirement and pension payments; 



372 



9:6 



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June 15, 1994 



PROPOSED RULES 



(L) Worker's compensation; 
(M) Educational stipends in excess of the 

cost of tuition and books; 
(N) Allowances paid for basic living 

expenses such as housing and utilities; 

and 
(O) All other sources of cash income 

except those specifically excluded. 
(2) Gross family income does not include: 

(A) Irregular, incidental income that a 
child may earn from babysitting, lawn 
mowing, or other similar tasks; 

(B) Supplemental security income bene- 
fits; 

(C) Proceeds from the sale of an asset; 

(D) Withdrawals from a bank account; 

(E) Gifts; 

(F) Inheritances; 

(G) Life insurance proceeds or other one 
time insurance settlements. 

(d) Any of the following expenses which are 
paid or incurred by a member of the patient's 
family shall be allowed as deductions in determin- 
ing annual net family income: 

(1) state, federal, and social security taxes 
owed on annual income (i.e. taxes 
withheld minus taxes refunded) and any 
deductions from pay required as a 
condition of employment such as man- 
datory retirement contributions; 

(2) work related expenses incurred by the 
individual which are required by the 
employer as a condition of employ- 
ment, but excluding the purchase or 
lease of an automobile, transportation to 
and from work, personal clothing and 
cleaning costs, food expenses, and all 
other items not required to perform the 
duties of employment; 

(3) medical and dental expenses not cov- 
ered by a third party payor, including 
the reasonable costs of transportation 
required to obtain the medical and 
dental services; 

(4) health insurance premiums; 

(5) child care expenses for any child 14 
years of age and under and any handi- 
capped child 15 years of age and over 
if both parents of a two parent family 
or a single parent work or are disabled 
or are out of the home attending school ; 

(6) expenses for the care of a spouse any 
family member who is physically or 
mentally unable to take care of himself 
or herself while th« other s pouse i s at 



work family members are out of the 
home working or attending school ; 

(7) child support and alimony payments 
paid to support someone outside of the 
family household; and 

(8) educational expenses incurred for the 
purpose of managing the disability of 
any member of the patient's family. 

Statutory Authority G.S. 130A-5(3); 130A-124; 
130A-127; 130A-129; 130A-177; 130A-205. 

SECTION .0300 - ELIGIBILITY 
PROCEDURES 

.0301 INCOME DOCUMENTATION 

(a) Documentation of earned income of the 
patient's family is required before services can be 
authorized in the following circumstances: 

(1) Whenever the applicant is requesting 
payment program benefits for inpatient 
services, even when outpatient services 
have been previously authorized. 

(2) Whenever medical expense deductions 
from income exceed three thousand 
dollars ($3,000). 

(3) Whenever eligibility personnel have 
reason to believe information given may 
be inaccurate. 

(4) Whenever the Department requests 
documentation for quality control pur- 
poses. 

(b) For purposes of this Rule, earned income 
means salarieSi and wages,, and self-employment 
income . 

(c) Eligibility personnel are authorized to re- 
quire documentation of any component used in 
computing a patient's annual net family income. 

(d) Notwithstanding the provisions of Subpara- 
graph (a)(2), eligibility personnel are not required 
to demand documentation of information concern- 
ing the earned income of the patient's family when 
reimbursement for inpatient services is requested 
through local health department delivery funds, 
15A NCAC 21 C .0200 or perinatal program high 
risk maternity clinic reimbursement funds, 15A 
NCAC 21 C .0300. 

Statutory Authority G.S. 130A-5(3); 130A-I24; 
130A-127; 130A-129; 130A-177; 130A-205. 

SECTION .0400 - REIMBURSEMENT 

.0404 REIMBURSEMENT FOR SERVICES 
NOT COVERED BY MEDICAID 



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373 



PROPOSED RULES 



(a) The Department shall reimburse providers of 
authorized services for which the Medicaid pro 
gram docs not have a reimbursement rate there are 
no Medicaid reimbursement rates according to a 
schedule of payments developed by the Department 
except as provided in Paragraph fb) of this Rule . 
Copies of this schedule may be inspected at or 
obtained from the Office of Purchase of Medical 
Care Services Section . 

fb) The Department shall reimburse providers of 
all mobility systems (including components and 
accessories), environmental control units, and 
custom seating systems for which there are no 
Medicaid reimbursement rates at the 
manufacturer's catalog price less 15 percent. 

Statutory Authority G.S. 130A-5(3); 130A-124: 
130A-127: 130A-129; 130A-177; 130A-205. 

SECTION .0500 - QUALITY 
CONTROL 



cant shall be given 30 days from the date 
of the notice of tentative decision to 
terminate eligibility to provide additional 
information or to file an appeal. If the 
applicant does not appeal or submit writ- 
ten information which proves that he is 
eligible, eligibility for program benefits 
shall be terminated. The applicant may 
reapply for eligibility at any time if there 
is a change in family size, income, de- 
ductions, or residency status . 

0j If no appeal i s made within 15 days; 

financial eligibility shall be terminated. 
However, the applicant may reapply for 
financial eligibility at any time if there i s 
a change in family size, income, or de - 
ductions. 

Statutory Authority G. S. 130A-5(3); 130A-24(al); 
130A-124; 130A-127; 130A-129; 130A-177; 
130A-205. 



.0502 TERMINATION OF ELIGIBILITY 

The Department shall take the following steps in 
order to terminate a person's financial eligibility 
for program benefits which is based upon on 
incorrect information or information that has 
changed since the eligibility applications were 
completed : 

(1) Notice shall be given to the applicant and 
the financial eligibility interviewer that^ 
the Department believes that the financial 
eligibility form contains incorrect infer 
mation — thet — materially — affected — the 
person's financial eligibility. — Th e appli 
cant and the interviewer s hall be given 15 
days to show why financial eligibility 
should not be terminated. 

(a) the Department has determined that 
eligibility was established based on 
incorrect information or information 
that has changed since the program 
eligibility applications were completed, 

fb) the applicant is not eligible for program 
benefits, and 

(c) the Department has made a tentative 
decision to terminate eligibility. 

(2) After the 15 day period, if the Depart 
ment determines that financial eligibility 
shall be terminated, notice shall be given 
to the applicant, the interviewer and the 
provider that the Department has made a 
tentative decision to terminate financial 
eligibility. — The applicant shall be given 
15 day s to request an appeal The appli- 



.0503 EFFECT ON AUTHORIZATIONS 

AND AUTHORIZATION REQUESTS 

(a) All authorizations will be honored by the 
Department, except that an authorization may be 
cancelled after a final decision to terminate finan 
eiftl eligibility if: 

(1) The applicant and the provider are 
notified of the authorization cancellation 
prior to the provision of the service. 
Authorizations may be cancelled in part 
when only some of the services have 
been provided; and 

(2) The provider has not made financial 
commitments based upon the authoriza- 
tion. 

fb) Authorization requests for services to be 
provided after the 15 day appeal period which arc 
received — by — the — Departm e nt — after a — tentative 
decision to terminate financial eligibility and prior 
to a final decision in the matter will be held until 



a final decision is made received during the period 
of time that the eligibility is under review or is 
being appealed will be held until a final decision in 
the matter is made . 

Statutory Authority G.S 130A-5(3); 130A-24A(al); 
130A-124; 130A-127; 130A-177; 130A-205; 
143B-193. 



374 



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PROPOSED RULES 



TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rule cited as 16 NCAC 6E . 0202. 

The proposed effective date of this action is 
October 1, 1994. 

The public hearing will be conducted at 10:00 
a.m. on July 19, 1994 at the Education Bldg. , 
Room 224 South, 301 N. Wilmington Street, 
Raleigh, NC 27610-2825. 

Keason for Proposed Action: Amendment clari- 
fies age requirements for participants in interscho- 
lastic athletics. 

Comment Procedures: Any interested party may 
present views and comments either orally at the 
hearing or in writing before or at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6E - STUDENTS 

SECTION .0200 - SCHOOL ATHLETICS 
AND SPORTS MEDICINE 

0202 INTERSCHOLASTIC ATHLETICS 

(a) Only students in grades 7-12 may participate 
in interscholastic athletic competition. In order to 
qualify for public school participation, a student 
must meet the following requirements: 

(1) The student must meet the residence 
criteria of G.S. 115C-366(a). The 
student may participate only at the 
school to which the student is assigned 
by the LEA or, if over the age require- 
ments, the school to which the student 
would be assigned at the next higher 
grade level . 

(2) The student must meet age requirements 
at each grade level to participate. The 
principal must have evidence of the 
legal birth date of the student. The ago 
limits for as of Octob e r 1 6 of e ach y e ar 
ftper A student who is ineligible to 
participate at one grade level due to age 
is eligible to participate at the next 



higher grade level only. However, no 
student may participate at the high 
school level for more than eight consec- 
utive semesters, beginning with the 
student's first entry into grade nine or 
participation on a high school team, 
whichever occurs first. 

(A) no older than age 1 8 for high s chool; 
A student is eligible to participate in 
high school athletic contests during a 
school year ]f the student does not 
reach the 19th birthday on or before 
October 16 of that school year. 

(B) no older than age 16 for ninth grade 
or junior high school; and A student 
shall not participate on a ninth grade 
junior high school team if the student 
becomes 16 years of age on or before 
October 16 of that school year. 

(C) no older than age 15 for s eventh or 
eighth grade. A student shall not 
participate on a seventh or eighth 
grade team if the student becomes 15 
years of age on or before October 16 
of that school year. 

(3) In grades 9-12, the student must pass at 
least five courses each semester and 
meet promotion standards established 
by the LEA. In grades 7 and 8, the 
student must meet state and local pro- 
motion standards and maintain passing 
grades each semester. Regardless of 
the school organization pattern, a stu- 
dent who is promoted from the eighth 
to the ninth grade automatically meets 
the courses passed requirement for the 
first semester of the ninth grade. 

(4) The student must receive a medical 
examination by a licensed medical 
doctor each year (365 days). 

(5) The student may not participate after 
any of the following: 

(A) graduation; 

(B) becoming eligible to graduate; 

(C) signing a professional athletic con- 
tract; 

(D) receiving remuneration as a partici- 
pant in an athletic contest; or 

(E) participating on an all-star team or in 
an all-star game that is not sanctioned 
by the association of which the 
student's school is a member. The 
student is ineligible only for the spe- 
cific sport involved. 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



375 



PROPOSED RULES 



(6) A high school student may participate 

only during the eight consecutive so 
mcstcrs beginning with the student's 
first entry into grade nine. 

(b) Each principal of a school which participates 
in interscholastic athletics must certify a list of 
eligible students for each sport. 

(c) Any student-athlete, coach or school official 
in grades 7-12 who is ejected from any athletic 
contest shall be penalized as follows: 

(1) for the first offense, the person shall be 
reprimanded and suspended for the next 
game at that level of play (varsity or 
junior varsity) and for any intervening 
games at either level; 

(2) for a second offense, the person shall 
be placed on probation and suspended 
for the next two games at that level of 
play (varsity or junior varsity) and for 
any intervening games at either level. 

(3) for a third offense, the person shall be 
suspended for one calendar year. 

(4) A coach who is suspended at any level 
of grades 7-12 (middle school, junior 
high or high school) may not coach in 
any other grade level in grades 7-12 
during the period of suspension. 

(5) Penalties are cumulative from sport to 
sport and from sport season to sport 
season. If no member of the school's 
coaching staff is present to assume an 
ejected coach's duties, the contest shall 
be terminated by a forfeit. 

(d) LEAs may allow their schools to belong to 
a statewide athletic association as long as the 
association establishes at a minimum the rules 
adopted by the SBE. 

(e) The LEA which has jurisdiction over the 
school may impose additional penalties. LEAs or 
conferences may adopt and impose penalties at the 
middle and junior high school levels. 

(f) The North Carolina High School Athletic 
Association (NCHSAA) may enforce penalties for 
the violation of this Rule at the high school level. 

Statutory Authority G.S. U5C-47(4). 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

CHAPTER 10 - BOARD OF 
CHIROPRACTIC EXAMINERS 



Notice is hereby given in accordance with G.S. 
150B-21. 2 that the N. C. State Board of Chiroprac- 
tic Examiners intends to adopt rule cited as 21 
NCAC 10 .0303, with changes from the proposed 
text noticed in the Register, Volume 8, Issue 18, 
pages 1806- 1807. 

1 he proposed effective date of this action is 
September 1, 1994. 

Iveason for Proposed Action: To enlarge the 
Rules of Ethics of Advertising and Publicity so as 
to regulate the manner in which chiropractors may 
solicit persons injured in automobile accidents. 

(comment Procedures: Written comments on the 
rule as revised may be sent to the Board for 30 
days after publication. The Board's mailing 
address is P. O. Box 312, Concord, NC 28025. 

Editor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

SECTION .0300 - RULES OF 
UNETHICAL CONDUCT 

.0303 SOLICITATION OF AUTO 
ACCIDENT VICTIMS 

(a) In-person and Telephone solicitation of Auto 
Accident Victims. In order to protect the public 



from misrepresentation, coercion or undue influ- 
ence, it shall be unlawful for a doctor of chiro- 



practic, or the doctor's employee, to initiate direct 
personal contact or telephone contact with any 
person who has been injured in a motor vehicle 
collision, or with any person residing in the in- 
jured person's household, for a period of 45 days 
following the collision, if the purpose of initiating 
contact is, in whole or part, to solicit the injured 
person to become a patient of the doctor. 

(b) Acceptance of Referrals From Runners. It 
shall be unlawful for a doctor of chiropractic to 
accept as a patient any person injured in an auto- 
mobile accident who was referred by a runner. As 
used in this Rule, the term "runner" means any 
person, firm or corporation that routinely obtains 
the names of injured persons from motor vehicle 



376 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



PROPOSED RULES 



accident reports or other public records and then 
:ontacts those persons to induce them to seek 
medical or chiropractic treatment or pursue legal 
:laims. 

(c) Solicitation of Auto Accident Victims by 
Mail. A doctor of chiropractic may solicit persons 
niured in motor vehicle collisions at any time 
hrough the use of posted communications such as 
etters, brochures, information packages and sound 
or video recordings. The words, "This js an 
advertisement for chiropractic services" must 
appear on the communication's envelope or mail- 
ing container in print large enough to be easily 
read. 

(d) Nonconforming Solicitation Deemed Unethi- 
;al Conduct. Any solicitation of automobile 
iccident victims which does not conform to the 
•equirements of this Rule shall be considered a 
violation of the Rules of Ethics of Advertising and 
^blicity pursuant to G.S. 90-154.2(5). 

Statutory Authority G.S. 90-142; 90-154; 90- 
154.2. 



9:6 NORTH CAROLINA REGISTER June 15, 1994 377 



LIST OF RULES CODIFIED 



The 


List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


Key. 


Citation = 

AD 

AM 

RP 

With Chgs 


Title, Chapter, Subchapter and Rule(s) 
Adopt 
Amend 
Repeal 
= Final text differs from proposed text 








Corr 


Typographical errors or changes that requires 


no rulemaking 






Eff. Date = 


Date rule becomes effective 








Temp. Expires = Rule was filed as a temporary rule and 


expires on this date 


or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 
MAY 94 



[TLE 


DEPARTMENT 


TITLE 


DEPARTMENT 


2 


Agriculture 


18 


Secretary of State 


4 


Commerce 


20 


State Treasurer 


10 


Human Resources 


21 


Occupational Licensing Boards 


11 


Insurance 




8 - Certified Public Accountant Examiners 


12 


Justice 




10 - Chiropractic Examiners 


13 


Labor 




12 - General Contractors 


15A 


Environment, Health, and 




14 - Cosmetic Art Examiners 




Natural Resources 




32 - Medical Examiners 


16 


Education 




34 - Mortuary Science 


17 


Revenue 




58 - Real Estate Commission 






25 


State Personnel 



Citation 



AD 



AM 



RP 



With 

Chgs 



Corr 



Eff. 
Date 



Temp. 
Expires 



NCAC 38 



.0401 



/ 



/ 



06/01/94 



43L .0113 



/ 



/ 



06/01/94 



.0202 



/ 



06/01/94 



.0304 



/ 



/ 



06/01/94 



.0305 



/ 



06/01/94 



.0306 



/ 



06/01/94 



.0307 



/ 



06/01/94 



.0308- .0311 



/ 



/ 



06/01/94 



.0312 - .0314 



/ 



06/01/94 



.0315 - .0316 



/ 



/ 



06/01/94 



378 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



LIST OF RULES CODIFIED 



- 


Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 43L .0317 


/ 










06/01/94 




.0318 


/ 






/ 




06/01/94 




.0319 


/ 










06/01/94 




.0320 


/ 






/ 




06/01/94 




.0321 


/ 










06/01/94 




.0322 


/ 






/ 




06/01/94 




.0323 


/ 










06/01/94 




.0324 - .0332 


/ 






/ 




06/01/94 




.0333 


/ 










06/01/94 




.0334 


/ 






/ 




06/01/94 




.0335 


/ 










06/01/94 




.0336 - .0337 


/ 






/ 




06/01/94 




.0338 


/ 










06/01/94 




48A .1702 -.1703 




/ 




/ 




06/01/94 




48B .0113 




/ 








06/01/94 




.0119 




/ 




/ 




06/01/94 




.0121 




/ 








06/01/94 




53 .0001 


/ 










06/01/94 




4 NCAC 19L .0104 




/ 








06/01/94 




.0401 




/ 




/ 




06/01/94 




.0403 - .0404 




/ 








06/01/94 




.0407 




/ 








06/01/94 




.0501 - .0502 




/ 








06/01/94 




.0901 




/ 




/ 




06/01/94 




.0906 




/ 




/ 




06/01/94 




.0912 




/ 








06/01/94 




.1011 




/ 




/ 




06/01/94 




.1202 




/ 








06/01/94 




.1302 




/ 




/ 




06/01/94 




.1303 




/ 








06/01/94 




.1501 - .1505 






/ 






06/01/94 




.1601 - .1604 






/ 






06/01/94 




10 NCAC 3M .0102 - .0103 




/ 








06/01/94 







9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



379 









LIST OF RULES CODIFIED 






— 




Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 


NCAC 


3M 


.0105 




/ 








06/01/94 




.0107 




/ 








06/01/94 








50B 


.0406 




/ 








06/01/94 




11 


NCAC 




soc 










/ 










12 


TOC 










/ 






12 


NCAC 


1 


.0212 






/ 






06/01/94 








7D 


.0701 




/ 




/ 




06/01/94 




13 


NCAC 


7A 


.0302 




/ 








06/01/94 








7F 


.0101 










/ 






.0201 




/ 








06/01/94 




15A 


NCAC 


1-2 


sex: 










/ 










2 


TOC 










/ 










2B 


.0216 




/ 




/ 




06/01/94 




.0311 




/ 




/ 




06/01/94 








7H 


.2101 


/ 










06/01/94 




.2102 


/ 






/ 




06/01/94 




.2103 


/ 










06/01/94 




.2105 


/ 










06/01/94 








18A 


.2508 




/ 








06/01/94 


180 DAYS 


.2539 


/ 










06/01/94 


180 DAYS 


16 


NCAC 


6B 


.0007 




/ 




/ 




07/01/94 








6C 


.0307 




/ 




/ 




07/01/94 




.0310 




/ 








07/01/94 




.040! 




/ 




/ 




07/01/94 




.0402 




/ 








07/01/94 








6E 


.0202 




/ 








07/01/94 








6G 


.0302 




/ 




/ 




07/01/94 




17 


NCAC 


6B 


.4006 




/ 








06/01/94 








7B 


.1101 




/ 








07/01/94 




.5405 




/ 








07/01/94 




.5410 




/ 








07/01/94 




.5463 


/ 










07/01/94 




18 


NCAC 


6 


.1510 


/ 










05/31/94 


180 DAYS 




380 




9:6 


/ 


WRTH 


CAROl 


,/AVt Rl 


1GISTE 


R 


Jl 


ine 15, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


20 NCAC 7 .0102 










/ 






.0104 - .0105 










/ 






.0201 - .0203 










/ 






.0304 










/ 






.0402 - .0403 










/ 






.0603 










/ 






21 NCAC 8A .0301 










/ 






8M .0304 




/ 








06/01/94 




10 .0103 




/ 




/ 




06/01/94 




12 .0202 




/ 








06/01/94 




.0205 




/ 




/ 




06/01/94 




.0306 




/ 








06/01/94 




.0402 




/ 








06/01/94 




14H .0005 




/ 




/ 




06/01/94 




.0008 




/ 




/ 




06/01/94 




.0010 




/ 








06/01/94 




.0011 - .0013 




/ 




/ 




06/01/94 




.0018 




/ 




/ 




06/01/94 




14J .0501 




/ 








06/01/94 




14N .0201 




/ 








06/01/94 




.0301 




/ 








06/01/94 




.0401 




/ 








06/01/94 




.0501 




/ 








06/01/94 




32L .0001 - .0012 






/ 






06/01/94 




320 .0001 - .0007 


/ 






/ 




06/01/94 




.0008 


/ 










06/01/94 




.0009 - .0014 


/ 






/ 




06/01/94 




.0015 


/ 










06/01/94 




.0016 - .0021 


/ 






/ 




06/01/94 




32P .0001 


/ 






/ 




06/01/94 




.0002 - .0004 


/ 










06/01/94 




.0005 


/ 






/ 




06/01/94 




.0006 


/ 










06/01/94 







NORTH CAROLINA REGISTER 



June 15, 1994 



381 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 32Q .0101 


/ 






/ 




06/01/94 




.0102 - .0104 


/ 










06/01/94 




,0201 


/ 










06/01/94 




.0202 


/ 






/ 




06/01/94 




.0203 


/ 










06/01/94 




.0204 - .0205 


/ 






/ 




06/01/94 




.0206 - .0207 


/ 










06/01/94 




34B .0103 




/ 








06/01/94 




.0110 




/ 








06/01/94 




.0120 




/ 








06/01/94 




.0126 


/ 










06/01/94 




34D .0202 




/ 








06/01/94 




58A .0110 




/ 








07/01/94 




.0502 - .0504 




/ 




/ 




07/01/94 




.0505 




/ 








07/01/94 




.1701 


/ 










07/01/94 




.1702- .1705 


/ 






/ 




07/01/94 




.1706- .1707 


/ 










07/01/94 




.1708 - .1711 


/ 






/ 




07/01/94 




58C .0101 




/ 




/ 




07/01/94 




.0102 - .0103 




/ 








07/01/94 




.0104- .0105 




/ 




/ 




07/01/94 




.0107 




/ 








07/01/94 




.0202 - .0204 




/ 








07/01/94 




.0214 




/ 








07/01/94 




,0218 




/ 




/ 




07/01/94 




.0301 - .0302 




/ 




/ 




07/01/94 




.0303 




/ 








07/01/94 




.0305 




/ 








07/01/94 




.0308 






/ 






07/01/94 




.0309 




/ 




/ 




07/01/94 




.0401 - .0407 






/ 






07/01/94 




.0501 - .0512 






/ 






07/01/94 







382 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 58D .0101 - .0102 






/ 






07/01/94 




.0201 - .0210 






/ 






07/01/94 




.0301 - .0306 






/ 






07/01/94 




.0401 - .0409 






/ 






07/01/94 




.0501 






/ 






07/01/94 




.0601 - .0606 






/ 






07/01/94 




.0701 






/ 






07/01/94 




58E .0101 


• 










07/01/94 




.0102 


/ 






• 




07/01/94 




.0103 


/ 










07/01/94 




.0104- .0105 


/ 






/ 




07/01/94 




.0201 - .0202 


/ 










07/01/94 




.0203 


/ 






/ 




07/01/94 




.0204 - .0205 


/ 










07/01/94 




.0206 


/ 






/ 




07/01/94 




.0301 - .0302 


/ 










07/01/94 




.0303 - .0304 


/ 






/ 




07/01/94 




.0305 


/ 










07/01/94 




.0306 - .0308 


/ 






• 




07/01/94 




.0309 


/ 










07/01/94 




.0401 


/ 










07/01/94 




.0402 


/ 






/ 




07/01/94 




.0403 - .0405 


/ 










07/01/94 




.0406 - .0407 


/ 






/ 




07/01/94 




.0408 - .0410 


/ 










07/01/94 




.0411 


/ 






/ 




07/01/94 




.0412 


/ 










07/01/94 




.0501 - .0503 


/ 










07/01/94 




.0504 


/ 






/ 




07/01/94 




.0505 - .0509 


/ 










07/01/94 




.0510 


/ 






/ 




07/01/94 




.0511 - .0514 


/ 










07/01/94 




25 NCAC 1C .0412 




/ 




/ 




06/01/94 





NORTH CAROLINA REGISTER 



June 15, 1994 



383 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


25 NCAC ID .1122 -.1128 






/ 






06/01/94 




.2501 - .2513 


/ 






/ 




06/01/94 




.2514 


/ 










06/01/94 




.2515 


/ 






/ 




06/01/94 





384 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



as. 



AGRICULTURE 
Markets 

2 NCAC 43L .0113 - Gate Fees 

Agency Revised Rule 
2 NCAC 43L ,0304 - Horse Facility 

Agency Revised Rule 
2 NCAC 43L .0320 - Dress of Lessees 

Agency Revised Rule 
2 NCAC 43L . 0322 - Display or Sale of Weapons 

Agency Revised Rule 
2 NCAC 43L .0331 - Premiums and Awards 

Agency Revised Rule 
2 NCAC 48A .1702- Noxious Weeds 

Agency Revised Rule 

COMMERCE 



RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 



Community Assistance 

4 NCAC 19L .0502 - Eligibility Requirements 

Agency Revised Rule 
4 NCAC 19L .0901 - Grant Agreement 

Agency Revised Rule 
4 NCAC 19L . 1302 - Eligibility Requirements 

Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Coastal Management 



15A NCAC 

Agency 
15 A NCAC 

Agency 
15A NCAC 

Agency 
ISA NCAC 

Agency 
15A NCAC 

Agency 
15A NCAC 

Agency 
15A NCAC 

Agency 



7H .1104- General 

Revised Rule 

7H .1204- General 

Revised Rule 

7H .1304- General 

Revised Rule 

7H . 1404 - General 

Revised Rule 

7H .1504- General 

Revised Rule 

7H .1604- General 

Revised Rule 

7H .1704- General 

Revised Rule 



Conditions 
Conditions 
Conditions 
Conditions 
Conditions 
Conditions 
Conditions 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 



05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



385 



RRC OBJECTIONS 



ISA NCAC 7H . 1804 - General Conditions 

Agency Revised Rule 
15A NCAC 7H . 1904 - General Conditions 

Agency Revised Rule 
15A NCAC 7H .2104 - General Conditions 

Agency Revised Rule 

HUMAN RESOURCES 

Children's Services 

10 NCAC 41 F .0704 - Physical Facility 
Agency Revised Rule 

Facility Services 

10 NCAC 3L .0906 - Compliance with Laws 
Rule Withdrawn by Agency 

INSURANCE 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



RRC Objection 
Obj. Removed 



05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 



04/21/94 
04/21/94 



04/21/94 



Agent Services Division 

11 NCAC 6 A .0802 - Licensee Requirements 

Rule Withdrawn by Agency 

JUSTICE 
Departmental Rules 

12 NCAC 1 .0212 - Grievance Procedure 

Agency Repealed Rule 

LABOR 
OSHA 

13 NCAC 7 A .0707 - Variances and Other Relief Under Section 95-1 32(a) 

Agency Revised Rule 
13 NCAC 7 A .0708 - Variances and Other Relief Under Section 95-1 32(b) 

Agency Revised Rule 
13 NCAC 7 A .0709 - Modification: Revocation: and Renewal of Rules or Orders 

Agency Revised Rule 
13 NCAC 7 A .0710 - Action on Applications 

Agency Revised Rule 
13 NCAC 7 A .0711 - Request for Hearings on Applications 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Chiropractic Examiners 

21 NCAC 10 .0303 - Solicitation of Auto Accident Victims 
Agency Withdrew Rule 



05/19/94 



RRC Objection 05/19/94 
Obj. Removed 05/19/94 



RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 



05/19/94 



386 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



RRC OBJECTIONS 



Cosmetic Art Examiners 

21 NCAC 14H .0008 - Floor Coverings 

Agency Revised Rule 
21 NCAC 14H .0011 - Cleanliness of Operators 

Agency Revised Rule 
21 NCAC 14H .0018 - Systems of Grading Beauty Establishments 

Agency Revised Rule 

Dental Examiners 

21 NCAC 161 .0003 - License Void Upon Failure to Renew 

Agency Revised Rule 
21 NCAC 16R .0002 - Approved Courses and Sponsors 

Agency Revised Rule 

General Contractors 

21 NCAC 12 .0205 - Filing Deadline/ APP Seeking QuallEmp/ Another 
Agency Revised Rule 

Medical Examiners 

21 NCAC 32P .0001 - Name of Limited Liability Company 

Agency Revised Rule 
21 NCAC 320 .0001 - Definitions 

Agency Revised Rule 
21 NCAC 320 .0002 - Qualifications for License 

Agency Revised Rule 
21 NCAC 320 .0003 - Temporary License 

Agency Revised Rule 
21 NCAC 320 .0005 - Annual Registration 

Agency Revised Rule 
21 NCAC 320 .0007 - Exemption from License 

Agency Revised Rule 
21 NCAC 320 .0015 - Assumption of Professional Liability 

Agency Revised Rule 
21 NCAC 320 .0017- Disciplinary Authority 

Agency Revised Rule 
21 NCAC 320 .0021 - Fees 

Agency Revised Rule 
21 NCAC 32Q .0101 - Definitions 

Agency Revised Rule 
21 NCAC 32Q .0208 - Confidentiality 

Rule Withdrawn by Agency 

Real Estate Commission 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 



RRC Objection 04/21/94 

Obj. Removed 04/21/94 

RRC Objection 04/21/94 

Obj. Removed 04/21/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/94 
05/19/94 



05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19194 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 
05/19/94 

05/19/94 



21 NCAC 58A .1711 - Continuing Education Required of Nonresident Licensees RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 

21 NCAC 58C .0104 - Scope: Duration and Renewal of Approval RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



387 



RRC OBJECTIONS 



21 NCAC 58C .0105 - Withdrawal or Denial of Approval 

Agency Revised Rule 
21 NCAC 58C .0218 - Licensing Exam Confidentiality: School Perform. /Lie 

Agency Revised Rule 
21 NCAC 58C .0309 - Certification of Course Completion 

Agency Revised Rule 
21 NCAC 58E .0102 - Update Course Component 

Agency Revised Rule 
21 NCAC 58E .0104 - Criteria for Approval of Update Course Sponsor 

Agency Revised Rule 
21 NCAC 58E .0203 - Application and Criteria for Original Approval 

Agency Revised Rule 
21 NCAC 58E .0206 - Request for Videotape 

Agency Revised Rule 
21 NCAC 58E .0304 - Criteria for Elective Course Approval 

Agency Revised Rule 
21 NCAC 58E .0306 - Elective Course Instructors 

Agency Revised Rule 
21 NCAC58E .0308 - Request for Videotape 

Agency Revised Rule 
21 NCAC 58E .0402 - Sponsor Eligibility 

Agency Revised Rule 
21 NCAC 58E .0406 - Course Rosters, Completion Certificated and Evaluations 

Agency Revised Rule 
21 NCAC 58E .0510 - Monitoring Attendance 

Agency Revised Rule 



PUBLIC EDUCATION 



Elementary and Secondary Education 







RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 


RRC Objection 


05/19/94 


Obj. Removed 


05/19/94 



16 NCAC 6C .0307 - Certificate Renewal 

Agency Revised Rule 

Agency Revised Rule 
16 NCAC 6E .0202 - Interscholastic Athletics 

Agency Revised Rule 



RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/21/94 
04/21/94 
05/19/94 
04/21/94 
05/19/94 



REVENUE 



Sales and Use Tax 



17 NCAC 7B .2608 - Plumbing: Heating: Air Cond/Elec Contractors: Purchases RRC Objection 05/19/94 



17 NCAC 7B .2609 - Plumbing: Heating: Air Cond/Elec Contractors: Sales 
17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W 
17 NCAC 7B .5464 - Ice Certificate Form: E-599Y 



RRC Objection 05/19/94 
RRC Objection 05/19/94 
RRC Objection 05/19/94 



STATE PERSONNEL 



Office of State Personnel 



25 NCAC ID .2401 - Career Growth Recognition Award 

Rule Withdrawn by Agency 
25 NCAC ID .2403 - Employees Eligible/Career Growth Recognition Award 

Agency Revised Rule 



05/19/94 
RRC Objection 05/19/94 
Obj. Removed 05/19/94 



388 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



RRC OBJECTIONS 



25 NCAC ID .2408 - Effective Date of Cost-of-Living Adjustment RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 

25 NCAC ID .2411 - Employees Eligible For Performance Bonus RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 



9:6 NORTH CAROLINA REGISTER June 15, 1994 389 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marahburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Raleigh Limits, Inc. 

COMMERCE 



94 DOA 0242 



West 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1485 


Mann 


03/11/94 



Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

James Hugh Baynes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Karen C. Tilghman v. Crime Victims Compensation Commission 
Rosemary Taylor v. Crime Victims Compensation Commission 
Percy Clark v. Crime Victims Compensation Commission 
Barbara Hendeison v. Crime Victims Compensation Commission 
Shirley Handsome v. Crime Victims Compensation Commission 
Georgeann Young v. Crime Victims Compensation Commission 
Laurence L. Tyson v. Crime Victims Compensation Commission 
Mary E. Haskins v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 

Patricia D. Solomon v. Macon County Health Department 



93 COM 1622 Chess 



03/01/94 



94 DOC 0252 Morrison 03/21/94 



93 CPS 0801 


West 


03/28/94 


9:2 NCR 


114 


93 CPS 1 104 


West 


04/21/94 






93 CPS 1108 


Gray 


03/28/94 






93 CPS 1347 


Nesnow 


03/24/94 






93 CPS 1608 


Reilly 


05/17/94 


9:6 NCR 


407 


93 CPS 1626 


Nesnow 


05/25/94 






94 CPS 0127 


Reilly 


04/19/94 






94 CPS 0259 


Morrison 


04/07/94 






94 CPS 0286 


Gray 


04/28/94 






94 CPS 0292 


Reilly 


04/18/94 






94 CPS 0368 


Gray 


04/26/94 






94 CPS 1406 


Gray 


03/17/94 







93 EHR 1777 



West 



05/23/94 



390 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Coastal Management 

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, DivB. of Coastal Mgmt & Environmental Mgmt 
Gaiy E. Montalbine v. Division of Coastal Management 

Environmental Health 

Jane C. 0"Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

I^squotank-Rsrquimans-Camden-Chowan 
Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 

Environmental Management 

David Springer v. Dept. of Environment, Health, & Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 

Marine Fisheries 



89 EHR 1378- 2 Gray 04/07/94 

90 EHR 0017^ Gray 04/07/94 
93 EHR 1792 Nesnow 03/21/94 



91 EHR 0838 


Bee ton 


04/06/94 


93 EHR 0924 


Bee ton 


03/03/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0333 


Reilly 


05/18/94 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 93 EHR 0394 Gray 



Solid Waste Management 



Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 
Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 
Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental, 
Inc., et al. 



93 EHR 0951 
93 EHR 1045 



Gray 

Morrison 



04/11/94 



03/28/94 
04/06/94 



9:3 NCR 214 



HUMAN RESOURCES 



Division of Child Development 

Judith Fridley v. Div. of Child Devel op ment/Ab use/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Woid Day Care, Jonathan Lankfoid v. Dept. of Human Resources 

Facility Services 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp. and Howard F. Marks, Jr., M.D. 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 

David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cty Dept. of Social Services 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0168 


Nesnow 


03/23/94 



93 DHR 0746 


Morgan 


04/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 1381 


Gray 


04/15/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1778 


West 


03/04/94 



94 DHR 0293 



Reilly 



04/15/94 



* Consolidated Cases. 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



391 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Child Support Enforcement Section 



William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Dexter L. ChambetB v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

Alvin Lee Martin v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthony A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Bernadetfc Cook v. Department of Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

King D. Graham v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

William A. Selleis v. Department of Human Resources 

Kenneth W. Cooper v. Department of Human Resources 

David L. Terry v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 

Dennis E. Fountain Jr. v. Department of Human Resources 

Mark E. Rogers v. Department of Human Resources 

Daniel Thomas Hefele v. Department of Human Resources 

Gilbert J. Gutierrez v. Department of Human Resources 

Alton D. Johnson v. Department of Human Resources 

Chester Sandere v. Department of Human Resources 

Rodney Guyton v. Department of Human Resources 

Donald W Clark v. Department of Human Resources 

William E. David Jr. v. Department of Human Resources 

John J. Gabriel v. Department of Human Resources 

Timothy D. Evans v. Department of Human Resources 

Billy Edward Smith v. Department of Human Resources 

Allen D. Terrell v. Department of Human Resources 

Ray C. Moses v. Department of Human Resources 

Mickey Bridget! v. Department of Human Resources 

Bart Ransom v. Department of Human Resources 

William H. Simpson Sr. v. Department of Human Resources 

James D. MeClure Jr. v. Department of Human Resources 

Douglas L. Cherrix v. Department of Human Resources 

Dwayne Lamont Thompson V. Department of Human Resources 

Horace Lee Bass v. Department of Human Resources 

Michael Wilder v. Department of Human Resources 

James A. Cephas v. Department of Human Resources 

Mark E. Campbell v. Department of Human Resources 

Barriet Easterling v. Department of Human Resources 

Wade A. Burgess v. Department of Human Resources 

Billy Dale Beaney v. Department of Human Resources 

James E. Wiggins Sr. v. Department of Human Resources 

Timothy J. Jones v. Department of Human Resources 

Randall E. Hunter v. Department of Human Resources 

Alton E. Simpson Jr. v. Department of Human Resources 

Johnny T Usher v. Department of Human Resources 

John William Vance Jr. v. Department of Human Resources 

Brian Gilmore v. Department of Human Resources 



93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bee ton 


03/30/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1 125 


Bee ton 


03/30/94 


93 CSE 1127 


Bee ton 


04/14/94 


93 CSE 1 128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1139 


Bee ton 


03/30/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1181 


Bee ton 


04/20/94 


93 CSE 1191 


Bee ton 


05/09/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1267 


Bee ton 


04/20/94 


93 CSE 1275 


Bee ton 


05/18/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Bee ton 


05/24/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1500 


Bee ton 


05/13/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1591 


Beeton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1597 


Beeton 


05/13/94 


93 CSE 1615 


Chess 


05/13/94 



392 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

Benjamin J. Stroud v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Royston D. Blandfbid III v. Department of Human Resources 

JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Boaid v. George P. Baker 

Private Protective Services Board 

Larry C. Hopkins v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Boaid 
Lemuel Lee Clark Jr. v. Private Protective Services Boaid 

Training and Standards Division 

Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 

MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 

PUBLIC EDUCATION 

Nancy Watson v. Boaid of Education 

Janet L. Wilcox v. Carteret County Boaid of Education 

STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachere' & St Emp Comp Major Med Plan 

STATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 

Department of Agriculture 

Donald H. Crawford v. Department of Agriculture 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Ha-Yilyah Ha-She*B v. NCCU 

Department of Commerce 

Ruth Daniel-ferry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Bert Esworthy v. Department of Correction 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1715 


Gray 


05/23/94 


94 CSE 0095 


West 


04/19/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 DOJ 0457 



93 DOJ 1618 

94 DOJ 0359 
94 DOJ 0360 



93 DOJ 0231 
93 DOJ 1071 

93 DOJ 1409 

94 DOJ 0048 



93 BMS 0532 



93 EDC 0234 
93 EDC 0451 



93 INS 0410 
93 INS 0929 



94 OSP 0108 



93 OSP 1097 



93 OSP 0875 



93 OSP 0725 



Nesnow 



Chess 



Chess 
Mann 



Reilly 



Reilly 



Bee Ion 



Chess 



03/10/94 



Morrison 03/07/94 
Nesnow 05/19/94 

Nesnow 05/19/94 



Chess 03/28/94 

Nesnow 04/11/94 

Gray 03/03/94 

Gray 03/29/94 



03/28/94 



02/28/94 
02/21/94 



Beelon 04/22/94 

Morrison 03/04/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 



05/23/94 



04/29/94 



04/13/94 



03/04/94 



9:3 NCR 218 



9:2 NCR 108 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



91 OSP 1287 


Chess 


02/22/94 




92 OSP 1770 


Becton 


05/24/94 


9:6 NCR 395 


93 OSP 0711 


Chess 


04/21/94 





9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



393 



CONTESTED CASE DECISIONS 



AGENCY 

Alfred B. Hunt v. Department of Correction 
Adrian E. Graham v. Intensive Probation/Tarole 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control &. Public Safety 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

Employment Security Commission of North Carolina 

Rcjeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 

Durham County Department of Social Senices 
Belinda F Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 

Mental Health/Menial Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 

Vhke County Mental Health , Developmental Disabilities, and Substance 

Julia Morgan Brannon v. Wake County MD/DD/SAS 

Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Scc'y Dept of Transportation 
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportetion 
Betsy Johnston Powell v. Department of Transportation 
Clyde Lem Hairston v. Department of Transportetion 
Henry C. Puegh v. Department of Transportation 

University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapel Hill 

STATE TREASURER 

Retirement Systems Division 

Molly Wiebenson v. Bd./Trustees/TeacherB' &. State Employees' Ret. Sys. 
John C. Russell v. Bd. /Trustees/Teachers* & State Employees' Ret. Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Elizabeth M. Dudley v. Bd./Trusteeaneachets' & State Emps' Ret. Svb. 
Joseph Fulton v. Bd-ZTrusteea/Teachem' & State Employees* Ret. Sys. 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0261 


Morrison 


04/26/94 



PUBLISHED DECISION 
REGISTER CITATION 



90 OSP 0239 

91 OSP 0401 

92 OSP 1463 



93 OSP 1780 



93 OSP 1069 



92 OSP 1454 



93 OSP 0728 

93 OSP 1604 
Abuse Services 

94 OSP 0214 



Chess 04/28/94 

West 03/18/94 

Reilly 03/21/94 



Gray 05/25/94 



West 04/08/94 



Bee ton 



Chess 



Bee ton 



Reilly 



05/04/94 



93 OSP 0830 


Bee ton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 



04/11/94 



03/18/94 



04/14/94 



93 OSP 0925 



Morrison 05/03/94 



92 DST 0015 

93 DST 0164 
93 DST 0785 
93 DST 1474 
93 DST 1731 



Morgan 05/26/94 

West 03/07/94 

Bccton 03/18/94 

Nesnow 03/28/94 

Beeton 05/25/94 



9:5 NCR 333 



93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1710 


Nesnow 


05/24/94 







9:5 NCR 342 



9:6 NCR 403 
9:1 NCR 68 



394 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF ORANGE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 OSP 1770 



ELROY LEWIS, 
Petitioner, 

v. 

NORTH CENTRAL AREA - DEFT. OF 
CORRECTION, MR. ROBERT LEWIS, 
Respondents. 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton. Administrative Law Judge, on March 22 and 23, 
1994, in Raleigh, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity 
to file written post-hearing submissions. The record was closed on April 22, 1994. 



Petitioner: 



APPEARANCES 



Abraham Penn Jones, Attorney at Law, Raleigh, North Carolina. 



Respondent: Neil Dalton, Assistant Attorney General, N.C. Department of Justice, 
Raleigh, North Carolina. 

BACKGROUND 

The petition for a contested case hearing was filed in the Office of Administrative Hearings on 
December 16, 1992, alleging that the Petitioner was discharged from his position as a Clinical Chaplain with 
the North Central Area of the North Carolina Department of Correction due to "prejudice" and that the 
decision was based upon erroneous material. 

The Petitioner asserted in his Prehearing Statement that his dismissal was "due to illegal political 
discrimination based upon the Petitioner's status as a chaplain and certain political activity in violation of G.S. 
126-36." 

The Respondent asserted in its Prehearing Statement that the Petitioner was discharged due to poor 
imekeeping practices amounting to falsification of employee time reports as outlined in the letter of discharge 
o the Petitioner dated August 7, 1992, which listed nine dates when the Petitioner allegedly reported to work 
ate and/or left early without adequate explanation and in which the Petitioner allegedly over-reported time 
ictually worked on his employee time reports. 

ISSUES 

I. Whether the Petitioner was dismissed from his position as Clinical Chaplain II in the North Central 

Area Office of the North Carolina Department of Correction, pay grade 70, effective July 9, 1992 
due to illegal political discrimination based on the Petitioner's status as a chaplain and certain political 
activity, in violation of North Carolina General Statutes section 126-36. 

Whether the Petitioner should have removed from his personnel file certain inaccurate and 
unsubstantiated material, pursuant to North Carolina General Statutes section 126-25, the same 
material which gave rise to his dismissal on or about July 9, 1992. 



1:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



395 



CONTESTED CASE DECISIONS 



3, Whether the Petitioner has exhausted his administrative remedies and complied with North Carolina 
General Statutes section 126-34 as it relates to the Petitioner's claim of erroneous and misleading 
information in his personnel file per North Carolina General Statutes section 126-25. 

4. If it is determined that inaccurate and misleading material was the basis for the Petitioner's dismissal, 
whether the Petitioner should then be reinstated to his position. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §§126-16, -25, -34, -36 
N.C. Dept. of Correction Personnel Manual 
Office of State Personnel's Personnel Manual 

EXHIBITS 

The exhibits listing was omitted from this publication. If you would like a copy please contact the 
Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 2761 1-7447, (919) 733-2678. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a feet that: 

1 . The Petitioner was discharged from his position as a Clinical Chaplain with the North Central Area 
of the North Carolina Department of Correction, Division of Prisons, effective July 9, 1992 in a 
dismissal letter dated August 7, 1992 for alleged unacceptable misconduct. 

2. At the time of the Petitioner's discharge, he did not have forty-eight months of continuous service as 
a State employee. 

3. The Petitioner contends that his dismissal was based on erroneous and misleading information in his 
personnel file and that this information should be deleted from his file pursuant to North Carolina 
General Statutes section 126-34. 

4. The Petitioner also contends that his dismissal was based on political bias and discrimination as a 
result of his relationship with former Secretary of Correction Aaron Johnson, his political activity, 
and general bias against him as a chaplain; therefore the Petitioner asserts that his activity was 
protected by, and his dismissal was in violation of, North Carolina General Statutes section 126-36. 

5. The Petitioner was suspended without pay on July 9, 1992. At the time of his suspension, the 
Petitioner was accused of poor timekeeping practices relative to three dates: May 26, 1992; June 1, 
1992; and June 8, 1992. 

6. Robert C. Lewis, the Area Administrator for the North Central Area testified that prior to May, 1992, 
he had received complaints and information that the Petitioner was not working all of the time he was 
supposed to be working when he was out of the office purportedly at various prison units in the North 
Central Area. 

7. On May 8, 1992, the Petitioner left the North Central Area Office in Raleigh purportedly heading for 
Warren Correctional Center. Approximately an hour later, Robert Lewis left the North Central Area 
office headed for Vance Correctional Center. While proceeding north on U.S. 1, the Petitioner, who 
was driving a State car, passed Mr. Lewis at a high rate of speed. Due to this incident and the other 
complaints he had received, Mr. Lewis decided to investigate the Petitioner's timekeeping. 



396 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



8. Robert Lewis devoted the three days of May 26, 1992, June 1, 1992, and July 8, 1992, to 
investigating the Petitioner's timekeeping. The Petitioner was scheduled to visit Durham Correctional 
Center during the morning on May 26, 1992 and June 8, 1992, and Person Correctional Center 
during the afternoon; on June 1, 1992, the Petitioner was scheduled to visit Person Correctional 
Center in the morning. 

9. At the time of his dismissal, the Petitioner had worked for the Respondent since December 4, 1990. 
When he was brought aboard, he was told by his supervisor, Mr. Louis Powell that "We are 
professionals in this office and do not walk around looking at a watch keeping time. " 

10. The nature of the Petitioner's work as a chaplain was very demanding and involved community work; 
recruitment of chaplains for correctional centers; scheduling religious services for volunteers; 
visitation of inmates' relatives at hospitals, visitation of staff members in hospitals and homes when 
they were ill, visitation of staff members' families when they were hospitalized; attending funerals 
and sometimes conducting funerals of inmates and staff; and presenting the chaplaincy program to 
ministerial alliances and university students in an effort to recruit persons to volunteer their time 
and/or consider prison ministry as a profession. 

11. The Petitioner's working hours were from 8:30 a.m. to 5:30 p.m. There were often occasions when 
the Petitioner's work day actually extended late into the evenings. 

12. Mr. Robert Lewis testified that on the occasions when the Petitioner began his work day somewhere 
other than the Area Office, he was expected to arrive at that site by 8:30 a.m. and continue working 
until 5:30 p.m. 

13. The Petitioner testified that he thought travel time could be counted toward the hours worked. 

14. The Petitioner was allowed to drive a State vehicle to conduct State business. If the Petitioner was 
planning to use a State vehicle, he was expected to arrive at the North Central Area Office at 8:30 
a.m. to pick up the State vehicle. Robert Lewis knew that it was the Petitioner's frequent practice 
to drive his personal vehicle when he visited both the Person and Durham Correctional Centers in the 
same day. The Petitioner was allowed to drive his personal vehicle on State business; however, this 
was his personal choice, not a requirement. 

15. On May 26, 1992, Robert Lewis first went to the North Central Area Office to see if the Petitioner 
was going to pick up a State vehicle that day. Sometime after 8:30 a.m., when the Petitioner had not 
arrived to pick up a State vehicle, Robert Lewis drove to the Durham Correctional Center to see if 
the Petitioner was there. Robert Lewis drove through the parking lot of the Durham Correctional 
Center and did not see the Petitioner's car. He left the Durham Correctional Center and went to a 
pay phone where he called the Durham Correctional Center to see if the Petitioner was inside the 
Center. After being informed that the Petitioner was not at the prison unit, Mr. Lewis called back 
to the North Central Area Office to see if the Petitioner was there or had been there to pick up a State 
vehicle. After determining that neither the Durham Correctional Center or the North Central Area 
Office had heard from the Petitioner, Mr. Lewis drove back to the Durham Correctional Center and 
looked for the Petitioner's car in the parking lot. When he could not locate the Petitioner's car, Mr. 
Lewis then drove to Person Correctional Center to see if the Petitioner was there. The Petitioner's 
car was not at the Person Correctional Center either. 

16. On May 26, 1992, the Petitioner drove his personal car from his home to the Durham Correctional 
Center. He left his home in Orange County at approximately 8:30 a.m. and signed the visitor's log 
at Durham Correctional Center at 9:40 a.m. Prior to signing the visitor's log, the Petitioner spent 
some time speaking with the superintendent about inmates and the divinity student who was placed 
at the center. The Petitioner spent approximately fifty minutes counselling with inmates. He signed 
out on the visitor's log at 10:30 a.m. After signing out, the Petitioner spent some time writing up 



9:6 NORTH CAROLINA REGISTER June 15, 1994 397 



CONTESTED CASE DECISIONS 



his "verbatims" and then drove to the Person Correctional Center. He signed in on the visitor's log 
at Person Correctional Center at 12:20 p.m. and signed out at 2:40 p.m. 

17. The Petitioner testified that although he signed out on the visitor's log at 2:40 p.m., he did not 
actually leave center until approximately 3:10 p.m. 

18. The Petitioner went to lunch after he left the Person Correctional Center. At approximately 4:30 
p.m., he began driving home and arrived there at approximately 5:30 p.m. 

19. On June 1, 1992, Robert Lewis again looked for the Petitioner at the Durham and Person Correctional 
Centers after leaving the North Central Area Office sometime after 8:30 a.m. He was unable to 
locate the Petitioner. 

20. The Petitioner drove his personal car to the Person Correctional Center on June 1, 1992. Prior to 
going on the yard and signing the visitor's log, the Petitioner spent some time consulting with 
Assistant Superintendent Selma Townes. 

21. The Petitioner signed in on the visitor's log at the Person Correctional Center at 10:45 a.m. and he 
signed out 12:10 p.m. 

22. After the Petitioner left the Person Correctional Center, he spent approximately an hour trying to 
recruit an individual to serve as the chaplain for the Person Correctional Center. He then went to 
lunch. After lunch, he drove to the Durham Correctional Center. 

23. The Petitioner signed in on the visitor's log at the Durham Correctional Center at 3:30 p.m. He 
introduced the new student chaplain to the superintendent, the staff, and the inmates. 

24. The Petitioner signed out of the Durham Correctional Center at 5:00 p.m. He then attended a work 
related Prison Ministry Workshop conducted by Chuck Colson from 6:00 p.m. until 10:00 p.m. 

25. On June 8, 1992, soon after 8:30 a.m., Robert Lewis again left the North Central Area Office looking 
for the Petitioner at both the Person and Durham Correctional Centers. He did not locate the 
Petitioner at either prison. 

26. The Petitioner went to the Durham Correctional Center on June 8, 1992 to do an hour of supervision 
with the Duke University divinity student. The divinity student was not there, therefore the Petitioner 
did a number of counseling sessions with several inmates instead. The visitor's log at the Durham 
Correctional Center indicates that the Petitioner signed in at 10:05 a.m. and signed out at 1 1:35 a.m. 
He took four hours of leave that afternoon. 

27. On July 7 and July 8, 1992, Robert Lewis, and the Petitioner's immediate supervisor, Louis Powell, 
confronted the Petitioner regarding the hours he worked on May 26, 1992, June 1, 1992, and June 
8, 1992. The Petitioner was accused of falsely reporting his time on the time reports, the DC-113's, 
handed into the Department. 

28. When he was first confronted with the issue of his time keeping, the Petitioner suggested that the 
dates in question may have been days that he went to the Area Office prior to travelling to the 
correctional centers. When told that Robert Lewis had verified that the Petitioner had not reported 
to the Area Office on those dates, the Petitioner did not provide any explanation other than that he 
did not always sign the visitor's log when he first arrived and he did not always leave the premises 
immediately after he signed out on the visitor's log. Furthermore, the Petitioner indicated that he felt 
that he given more than the requisite eight hour day's worth of work, but if the Respondent had some 
problem with his time keeping, then he would not object to the hours being deducted from his 
accumulated vacation and compensatory leave. 



398 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



29. After the July 8, 1992 meeting with the Petitioner, Robert Lewis and Louis Powell began to further 
investigate the Petitioner's timekeeping. The investigation focused on days when the Petitioner was 
scheduled to work at both the Durham and Person Correctional Centers and the Respondent found 
several other dates where it was felt that there were discrepancies between the hours on the visitor's 
logs and the time the Petitioner reported on his monthly time reports. 

30. During the course of his employment with the Respondent and up until July 8, 1992, the Petitioner 
was never told that the visitor's logs at the various units within the North Central Area were a 
legitimate official document for timekeeping. 

31. Likewise, the Petitioner understood that his timesheets, which were turned in on a monthly basis by 
his supervisor, Louis Powell, could be corrected in case of errors based on recordkeeping, faulty 
memory or both. 

32. The Petitioner did not have access to his time reports until just before they were turned in. It was 
Mr. Powell's practice to call the Petitioner into his office and ask him what sick and/or vacation time 
the Petitioner had taken during the month. Mr. Powell, himself, filled out the DC-113, Employee 
Time Report. He would then give it to the Petitioner to sign, at which time the Petitioner was able 
to review the time reports before they were turned in. 

33. The Petitioner received a letter of suspension on July 9, 1992 which cited three dates, May 26, June 
1, and June 8, 1992, as the basis for his suspension for unacceptable personal conduct. 

34. The Petitioner wrote to Mr. Robert C. Lewis, the Area Administrator, appealing his suspension on 
the basis that the grounds for the suspension were untrue and he unequivocally denied that he had 
deliberately falsified his time reports. 

35. Between July 9, 1992 and July 23, 1992 when the Petitioner was given a pre-dismissal conference 
and a letter dated July 23, 1992, the Petitioner was not allowed access to his records at the unit. In 
addition to the three original dates the Petitioner had been questioned about, the July 23, 1992 letter 
included six additional dates in April, May, and June of 1992 on which it was alleged that the 
Petitioner had misrepresented the hours he had worked on his time sheets. 

36. The Petitioner received a letter terminating his employment on August 7, 1992. 

37. At no time during the course of the investigation being conducted between July 9, 1992 and August 
7, 1992, did the Petitioner have access to materials to respond to the allegations regarding his 
timekeeping with respect to dates from April 6, 1992 through June 29, 1992. 

38. The Petitioner's fellow chaplains testified at the hearing that the Petitioner was a man of high moral 
character, had a strong reputation for truth and veracity, and had an excellent reputation as a worker 
within the prison system. 

39. The Respondent's Division of Prisons did not have a set policy regarding the signing of visitor's logs 
at the correctional centers. The practice varied depending upon the correctional center and the prison 
official. Some of the Respondent's officials signed the logs regularly, both as they went in and when 
they were coming out. Others did not sign at all, and some signed when entering or exiting, but not 
both. 

40. Mr. Louis Powell testified that he counselled the Petitioner on two occasions, April 1, 1992 and May 
7, 1992, regarding the need for him to pay attention to his time as it related to being where his 
schedule indicated and being there on time. Apparently, however, if these counselling sessions 
occurred, they were not documented since the Respondent did not offer any documents from the 
Petitioner's personnel file, or elsewhere, verifying that these counselling sessions took place. 



9:6 NORTH CAROLINA REGISTER June 15, 1994 399 



CONTESTED CASE DECISIONS 



41 The Petitioner, like other chaplains, enjoyed a special relationship with Aaron Johnson who was 

himself a member of the clergy. The Petitioner testified that he felt that both Robert Lewis and Louis 
Powell had some resentment toward him due to his relationship with Secretary Johnson and that Mr. 
Powell had referred to the Petitioner at one point as a "celebrity" and Robert Lewis had told the 
Petitioner that "he was no better than anybody else. " 

42. The Petitioner was integrally involved with setting up a banquet and selling tickets for the banquet 
honoring outgoing Secretary of Correction Aaron Johnson. There was testimony that although this 
banquet was attended by some prison officials, there was some degree of anxiety or apprehension 
associated with participation in this event. 

43. Assistant Secretary Lattie Baker, who is still employed by the Respondent, also co-sponsored the 
going away banquet for former Secretary Aaron Johnson. 

44. Lattie Baker has not been terminated or suffered any other repercussions due to his co-sponsoring the 
banquet for former Secretary Johnson. 

45. No evidence was presented at the hearing that anyone other than the Petitioner felt they had suffered 
any negative repercussions as a result of either sponsoring or attending the banquet for former 
Secretary Johnson. 



Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. Unless an employee is alleging discrimination, the employee must be a permanent or career State 
employee in order to avail himself or herself of the protection afforded by North Carolina General 
Statutes section 126-35 which provides for disciplinary action only on the basis of just cause. 

2. The Petitioner, as pay grade 70 employee, needed to have been employed by the State for 48 months 
preceding his termination in order to qualify him as a permanent State employee for the purposes of 
just cause protection under North Carolina General Statutes section 126-35. Because the Petitioner 
had been employed by the State for less than 48 months, he was not a permanent State employee 
protected from wrongful discharge pursuant to North Carolina General Statutes sections 126-5, -35, - 
39. 

3. The Petitioner, however, alleged that he had been discriminated against on the basis of his religion 
and political affiliation and the State Personnel Act does provide even a probationary employee a right 
to appeal grievances when allegations of discrimination are involved. N.C. Gen. Stat. §126-16. 

4. The allegations of religious discrimination were disposed of by granting the Respondent's Motion to 
Dismiss regarding that issue. With regard to the political discrimination issue, the Petitioner is not 
a permanent State employee and the non-discrimination provisions of section 126-16 which are 
applicable to applicants for State employment do not include a prohibition against discrimination based 
upon political affiliation. The provisions of section 126-36, which do include a prohibition against 
discrimination on the basis of political affiliation, only apply to State employees or former State 
employees. The Petitioner, as a probationary employee, is not either a State employee or former 
State employee as that term is defined in the State Personnel Act. Thus, it is not clear that the 
Petitioner has a cause of action based upon political discrimination. Even if the Petitioner has such 
a cause of action, the Petitioner did not prove by the greater weight of the evidence that his dismissal 
was due to discrimination based upon political affiliation. 



400 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



5. The Petitioner's contention that his personnel file contains false and misleading information is not 
appealable directly to the Personnel Commission. Such a claim must be appealed through the 
Respondent's Employee Grievance Procedure. N.C. Gen. Stat. §§126-34, 126-25. 

6. The Respondent's grievance procedure provides that employee appeals from the Petitioner's area are 
to go first to the Area Administrator, then to the Geographical Command, and finally to Personnel. 

7. The Petitioner's letter to his Area Administrator, Robert C. Lewis, in which he appealed his 
suspension on the grounds that the basis for his suspension was untrue was sufficient to be considered 
an appeal on the basis of inaccurate or misleading information in the Petitioner's personnel file and 
complied with the first step of the Respondent's internal grievance process. The fact that his 
grievance was forwarded on to personnel, skipping the second step of the internal grievance process, 
was not the Petitioner's fault. Consequently he should not be penalized for a so called failure to 
follow the internal grievance process when the Respondent's actions are the cause of the failure to 
move from the Area Administrator to the second level of the appeal process 

8. The Petitioner did exhaust the internal administrative remedies regarding his contention that his 
personnel file contains erroneous and misleading materials. Having exhausted the internal grievance 
process, the Petitioner was entitled to appeal to the State Personnel Commission. 

9. There is no evidence which establishes that prison officials are required to sign the visitor's log as 
soon as they arrive at the correctional centers or that they must leave the premises as soon as they 
sign out on the visitor's log. The Respondent did not present evidence that established that there were 
no work related duties that the Petitioner could have been performing during the times that he was 
neither at one of the correctional centers or at the area office. Therefore, all that the times and dates 
on the visitor logs establishes is that those are the times that the Petitioner signed the logs. 

10. If it were the Petitioner's intention to deliberately defraud the Respondent by claiming to work when 
he had not, he could have done what many prison personnel do, not sign the visitor logs at all. 
Absent an intention to defraud the State, the discrepancies, if there are any, in the Petitioner's 
timekeeping fall under the category of performance and not personal conduct. 

11. To the extent that the Petitioner has been accused of deliberately falsifying his time records, the 
Petitioner's personnel file contains inaccurate and misleading information. 

12. Any materials in the Petitioner's personnel file alleging that he deliberately falsified his time reports 
should be removed as being inaccurate and erroneous. 

13. If the Petitioner were a permanent State employee, he would be entitled to reinstatement since he did 
not receive the requisite number of progressive warnings which would justify a performance based 
dismissal. Since the Petitioner is not a permanent State employee, he does not have just cause 
protection and he is not entitled reinstatement. 

RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
order the Respondent to remove all charges of and references to allegations of deliberately falsifying time 
records from the Petitioner's personnel file. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 



9:6 NORTH CAROLINA REGISTER June 15, 1994 401 



CONTESTED CASE DECISIONS 



NOTICE 

Before the State Personnel Commission makes the FINAL DECISION, it is required by North 
Carolina General Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this 
RECOMMENDED DECISION, and to present written arguments to those in the agency who will make the final 
decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 24th day of May, 1994. 



Brenda B. Becton 
Administrative Law Judge 






402 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF BUNCOMBE 



IN THE OFFICE OF 

ADMINISTRATTVE HEARINGS 

92 DST 0015 



MOLLY WIEBENSON 
Petitioner, 



BOARD OF TRUSTEES TEACHERS' AND 
STATE EMPLOYEES' RETHtEMENT SYSTEM 
Respondent 



RECOMMENDED DECISION 



The above-captioned matter was initiated by the filing of the Petitioner's Petition for a Contested Case 
Hearing on January 10, 1992. In a document captioned "Stipulations" which was jointly filed by the Petitioner 
and the Respondent on March 19, 1992, the parties jointly moved for a Recommended Decision in this 
contested case on the basis of their submission of stipulations. 

APPEARANCES 

Mark C. Martin, Patla, Straus, Robinson and Moore, P.A., for the Petitioner. 

Alexander McC. Peters, Assistant Attorney General, for the Respondent. 

ISSUE 

Whether the Petitioner is eligible for membership in the Teachers' and State Employees' Retirement 
System of North Carolina for the period of time in which she has shared a position of employment with 
another individual, with each person working six months per year, in the North Carolina Department of 
Human Resources. 

STIPULATIONS 

The parties submitted the following stipulations for consideration by the presiding administrative law 
judge, in lieu of evidentiary presentations at a contested case hearing, in order to dispose of this contested 
case: 

1. Both Petitioner and Respondent are proper parties before this Court, and both parties are 
within the jurisdiction of this Court. 

2. Petitioner is presently employed, and was employed at all material times, by the North 
Carolina Department of Human Resources in the Alcoholic Rehabilitation Center (hereinafter 
"Center") in Black Mountain, Buncombe County, North Carolina. 

3. Petitioner is before this Court contesting the decision made by J. Marshall Barnes, III, 
Deputy Director, Retirement Systems Division, Department of State Treasurer, State of North 
Carolina, as set forth in his letter dated November 18, 1991 . In this letter, Respondent ruled 
that Petitioner was not eligible for retirement and disability benefits for the period of her 
employment, which began in 1984. A true and correct copy of this November 18, 1991 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



403 



CONTESTED CASE DECISIONS 



letter is attached hereto and incorporated herein by reference as "Exhibit 1." Exhibit 1 is the 
document which constitutes the agency's action. 

4. On or about January 18, 1984, Petitioner was advised by the Center, via a memorandum 
from Millard P. (Buddy) Hall, Jr., that she would be able to share with Ms. Evelyn Brank, 
on a six-month basis, the position of rehabilitation therapist, grade 62. Petitioner was further 
told in this January 18, 1984 memorandum that, by sharing this employment position, she 
would be able "to maintain the benefits afforded to employees of the State of North 
Carolina." Petitioner was also told that, "[d]uring the six months each of you work per 
year[,] your retirement, Insurance and other deductions you may have will be processed 
through the normal channels of deductions of payroll." A true and correct copy of the 
Center's January 18, 1984 memorandum is attached hereto and incorporated herein by 
reference as "Exhibit 2." 

5. Petitioner relied upon the unequivocal representations set forth in Exhibit 2, which 
representations were made on behalf of the Department of Human Resources and the Center, 
and as a result thereof. Petitioner (among other things) did not obtain individual retirement 
or disability coverage. 

6. On September 17, 1991, Petitioner wrote to Respondent requesting a decision on Petitioner's 
entitlement to retirement and disability benefits from the State of North Carolina. A true and 
correct copy of Petitioner's September 17, 1991 letter to the Respondent is attached hereto 
and incorporated herein by reference as "Exhibit 3." 

7. In the November 18, 1991 letter (that is. Exhibit 1) Respondent declared Petitioner ineligible 
for retirement membership for the period of her employment, because Petitioner is not an 
"employee" within the meaning of N.C. Gen. Stat. §135-1(10). 

8. Petitioner prays that this Court find that Petitioner is entitled to her retirement and disability 
benefits from the State of North Carolina for the period of her employment with the Center. 

9. The parties stipulate that the caption in this contested case be amended, and that the words 
"THE BOARD OF TRUSTEES OF THE TEACHERS AND STATE EMPLOYEES 
RETIREMENT SYSTEM" replace the words "RETIREMENT SYSTEMS DIVISION, 
DEPARTMENT OF STATE TREASURER ." 

CONCLUSIONS OF LAW 

1. North Carolina General Statutes Section 135-3(1) states, in pertinent part, that the membership of the 
Teachers' and State Employees' Retirement System of North Carolina includes all persons who shall 
become State employees after the date as of which the Retirement System was established, and that 
on and after July 1, 1955, membership in the Retirement System shall begin immediately upon the 
employment of a "teacher or employee" as the terms are defined in Chapter 135 of the North Carolina 
General Statutes. 

2. As an individual who was employed by the North Carolina Department of Human Resources 
beginning in 1984, the Petitioner was eligible for membership in the Teachers' and State Employees' 
Retirement System of North Carolina immediately upon her employment, subject to the definition of 
the term "employee" in Chapter 135 of the North Carolina General Statutes. 

3. N.C.G.S. §135-1(10) states, in pertinent part, that the word "employee," as used in Chapter 135 of 
the North Carolina General Statutes, means a full-time employee of the State of North Carolina or 
any of its departments, bureaus and institutions other than educational. The statutory section also 
states that the term "employee" shall not include any part-time or temporary employee. N.C.G.S. 
§135-1(10) concludes, in pertinent part, with the provision that employees of State agencies, 



404 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



departments and institutions who are employed in permanent job positions on a recurring basis and 
who work 30 or more hours per week for nine or more months per calendar year are covered by the 
provisions of this subdivision. 

4. Under the employment arrangement which the Petitioner and the North Carolina Department of 
Human Resources had devised as described in the January 18, 1984 memorandum to the Petitioner 
and Evelyn Brank from Millard P. (Buddy) Hall, Jr., the Petitioner is not an "employee" as the term 
is defined in N.C.G.S. §135-1(10) for the purpose of membership in the Teachers' and State 
Employees' Retirement System of North Carolina, because the Petitioner shared a Rehabilitation 
Therapist position with Brank in which the Petitioner worked six months out of each year rather than 
the minimum period of nine months per year which N.C.G.S. §135-1(10) requires an individual to 
work in order to be considered as an "employee. " 

5. The Petitioner is not eligible for membership in the Teachers' and State Employees' Retirement 
System of North Carolina for the period of time in which she has shared a position of employment 
with another individual, with each person working six months per year, in the North Carolina 
Department of Human Resources. 

RECOMMENDATION 

It is recommended that the Respondent's determination that the Petitioner is not eligible for 
membership in the Teachers' and State Employees' Retirement System of North Carolina for the period of 
time in which she has shared a position of State employment with another individual be upheld. 

DISCUSSION 

The statutory law of North Carolina requires, in the estimation of the undersigned administrative law 
judge, that the Respondent prevail in this contested case. Nonetheless, the undersigned is gravely concerned 
about the inequitable dilemma in which the Petitioner finds herself. In a memorandum dated January 18, 1984 
which is a part of the contested case record, Millard P. (Buddy) Hall, Jr. of the North Carolina Department 
of Human Resources' Alcoholic Rehabilitation Center unequivocally represented that during the six months 
of each year that the Petitioner worked as a Rehabilitation Therapist, her retirement, insurance and other 
deductions would be processed through normal channels. Hall likewise represented in the memorandum that 
during the months that the Petitioner was on leave from her employment with the Alcoholic Rehabilitation 
Center, she would be able to "pay to the system" her portion of employee benefits and "be maintained within 
the Retirement Insurance and other benefit packages. " 

It turns out that both of these representations were incorrect, as stated in the November 18, 1991 letter 
to the Petitioner's retained law firm from Deputy Director J. Marshall Barnes, III of the Retirement Systems 
Division of the State of North Carolina Department of State Treasurer. This letter is also a part of the 
contested case record. While the Petitioner understandably relied upon these erroneous assertions which were 
made in writing on the letterhead stationery of her employer by someone of authority in the workplace, the 
Petitioner exercised this reliance to her unfortunate detriment. 

The undersigned does not have jurisdiction in this contested case over the North Carolina Department 
of Human Resources, its institution the Alcoholic Rehabilitation Center, or any of its employees to recommend 
that any of these subjects be compelled to rectify the situation in which the Petitioner has been placed as a 
result of her reliance on misinformation which emanated from her employer which apparently prevents the 
Petitioner from receiving credit towards retirement for the time period in which she has shared a position of 
employment with another individual. Similarly, since it does not appear in the contested case record that the 
Respondent has any culpability for the erroneous information which was given to the Petitioner, the 
Respondent cannot be directed to act in any rehabilitative manner beyond that which it has already offered 
to do, which is to refund all of the retirement contributions made by the Petitioner, plus interest, during the 
time period in which the Petitioner was employed in the shared job position. 



9:6 NORTH CAROLINA REGISTER June 15, 1994 405 



CONTESTED CASE DECISIONS 



If there is some way that the Petitioner can be placed in a position that she can receive retirement 
credit for the time period that she shared the position of employment in the North Carolina Department of 
Human Resources with another individual, then that opportunity, should be explored and implemented. 
Otherwise, an individual employed by an agency of the State of North Carolina will be irreparably penalized 
for her faithful reliance upon misinformation which was provided to her by her employing agency after she 
had pursued proper channels for information which was presumably correct. This would, indeed, be an 
inappropriate and frightening message to send to employees of the State of North Carolina. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, RO. Drawer 27447, Raleigh, N.C 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the Teachers' and State 
Employees' Retirement System of North Carolina. 

This the 26th day of May, 1994. 



Michael Rivers Morgan 
Administrative Law Judge 



406 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF NEW HANOVER 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 CPS 1608 



KAREN C TTLGHMAN, 
Petitioner, 



v. 



RECOMMENDED DECISION 



CRIME VICTIMS COMPENSATION 
COMMISSION, 

Respondent. 



This matter came on for hearing before the undersigned administrative law judge on May 2, 1994, 
in Wilmington. 

The petitioner appeared pro se. Mr. Robert T. Hargett represented the respondent. The facts were 
not disputed. The petitioner introduced one exhibit. 

ISSUE 

Did the respondent properiy deny compensation because the claimant suffered no economic lost? 

FINDINGS OF FACT 

1. On July 23, 1992, the victim, a six-year-old child, told her mother, the petitioner and 
claimant, that a fourteen-year-old cousin had sexually abused her on three occasions. The petitioner 
immediately reported the matter to law enforcement officials and had her daughter examined at New Hanover 
Regional Medical Center. 

2. The petitioner is the sole provider for her daughter and herself. As the result of the offender's 
actions, the petitioner was required to provide special care to her daughter. The petitioner took her daughter 
to medical appointments, made visits to school when required and otherwise was present to comfort her 
daughter. 

3. The petitioner was, at this time, an hourly employee of Bedford Fair Industries, LTD, in 
Wilmington. Her hourly wage was $5.75. As a result of the special care provided her daughter, the petitioner 
lost twenty-five days of work. She would have earned $1 ,150.00. 



CONCLUSIONS OF LAW 

The petitioner is a claimant. See GS 15B-2(2). 

The petitioner seeks compensation for economic loss sustained by her as a claimant. See GS 



1. 

2. 
15B-7(6). 



3. "Economic loss" includes "economic detriment consisting only of allowable expense. 

See GS 15B-2(10). 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



407 



CONTESTED CASE DECISIONS 



4. "Allowable expense" means "reasonable charges incurred for reasonably needed . . . 
services." The petitioner provided services reasonably needed by the victim. The petitioner incurred a 
reasonable charge (lost wages) in providing the services. 

5. There is substantial evidence that the requirements of GS Chapter 15B have been met and that 
the petitioner is entitled to an award of $1,150.00 as compensation for criminally injurious conduct. See GS 
15B-4. 



RECOMMENDED DECISION 

It is recommended that the respondent grant the petitioner an award of $1,150.00. 

NOTICE 

The parties have the right to file exceptions and to present written arguments to the respondent. The 
final decision in this contested case shall be made by that agency. The agency will mail a copy of the final 
decision to the parties and the Office of Administrative Hearings. 



This the 17th day of May, 1994. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



« 



408 9:6 NORTH CAROLINA REGISTER June 15, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



lhe North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



9:6 



NORTH CAROLINA REGISTER 



June 15, 1994 



409 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 



Unless otherwise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

DEM/ Air Quality, 80 \ 

Departmental Rules, 254 

Environmental Management, 81, 258, 352 

Health Services, 323, 370 

NPDES Permit, 3, 232 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission. 38, 42, 84, 358 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Facility Services, 4, 128 

Medical Assistance, 318 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313 

Social Services, 136 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99 



410 9:6 NORTH CAROLINA REGISTER June 15, 1994 



CUMULATIVE INDEX 



INSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351 

Criminal Justice Education and Training Standards Commission, 149 

State Bureau of Investigation, 234 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192 

Nursing, Board of, 45 

Optometry, Board of Examiners, 1 94 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375 

TRANSPORTATION 

Highways, Division of, 85 

Motor Vehicles, Division of, 89, 276 



9:6 NORTH CAROLINA REGISTER June 15, 1994 411 



NORTH CAROLINA ADMINISTRATIVE CODE 



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